supported by a long tradition of freedom to contract. Without this freedom, adaptations (from novel to movie, from black-andwhite to color) could be much more difficult to create and the public would be the one hurt by not having access to them. The Directors Guild of America has testified before your subcommittee that "[o]ur art and our software, our music and our literature and motion pictures are of as high or higher quality as anyone elses..." 1/ Hal Roach Studios wholeheartedly agrees. These works are flourishing in a system which already rewards the author and promotes the arts in the best possible way. The testimony which has been submitted into the record underscores the danger of joining the Berne Convention and the serious disruptions adherence could cause. Congress would certainly not wish to make artistic works more difficult to produce or to increase litigation over "moral rights" issues. Our system should not be upset by adherence to a convention whose ramifications are at best uncertain and at worse, disastrous. 1/ See Oral Statement of Sydney Pollack before the Subcommittee Attached is the Statement of the Association of American Publishers on the issue of U.S. adherence to Berne and implementing legislation. We offer these comments to assist in your committee's consideration of this issue. We would be happy to respond to any questions. Sincerely, Malerted &. Eclistic Nicholas A. Veliotes NAV/ab CC: Members of the Subcommittee on Courts, Civil Liberties and the The Association of American Publishers represents some 250 publishers of books, serials, looseleaf services, audio visual and educational materials, computer software and online databases. Our interest in international copyright is vital and continues to grow. Many of our members have foreign branches, divisions, or subsidiaries; a few of our members are themselves foreign corporations. Virtually all have some international connection -- they may sell their publications overseas, license their works for translation and reproduction abroad, or acquire tangible products or intellectual property rights from foreign authors and publishers. Our industry's business abroad is a great national asset, both in fostering the global flow of ideas and information, and in contributing substantially to a favorable balance of commerce in intellectucal property. Our industry's security at home -- its reliance on reasonable laws is vital - to its domestic and foreign business expectations. Our members' perceptions of how Berne adherence impacts on their divergent interests affect our submission to you. As you are already well aware, our members are not united on the subject of United States adherence to the Berne Convention, and the AAP today does not take a position on this ultimate question. - A book is the result of a lengthy collaborative process between writer (often, several -- or teams of writers) and publisher. This relationship is defined by individual contracts and longestablished trade practices. Obviously, our industry must have stability and predictability in its business arrangements and relationships. Does Article 6 bis of Berne threaten this essential requirement? Some of our members believe it does not, and that present law and publishing practices in the United States are now in compliance with Article 6 bis. Some of these members support Berne adherence with implementing legislation that would expressly confirm this; others would find it preferable to provide limited, alienable non-economic rights in the Copyright Act and clearly preempt similar state causes of action. Others of our members believe that Article 6 bis will inject instability; they are opposed to Berne adherence under any circumstances, believing that accession will inevitably intrude alien Article 6 bis concepts into American law and cloud publishing practices and contractual relationships. While we, as an Association, therefore stand neither for nor against Berne adherence, we would like to share with you some of our concerns with respect to the implementing legislation now before the 100th Congress: Registration With respect to copyright formalities, there are several points that concern AAP. First, we believe, along with the Ad Hoc Working Group Report and the position implicit in S. 1301, that neither registration of a claim to copyright nor recordation of any conveyances through which ownership of copyright is asserted should be conditions precedent to filing an infringement action. The current law, which contains provisions creating such conditions, clearly burdens the exercise and enjoyment of copyright rights in a manner that violates Berne. Furthermore, we do not share the belief that, if these conditions precedent are abolished, other burdens in some cases even more onerous - - must be placed on authors and publishers. The value of a registration certificate as prima facie evidence of the validity of the copyright and the facts stated on the certificate's face is a powerful inducement to register, as is the law's provision generally limiting the availability of statutory damages and attorneys' fees to post-registration infringements. And these inducements, unlike those that absolutely close the courthouse door to owners of unregistered and unrecorded claims, are permitted by Berne. It is one thing to encourage registration within five years of a work's publication, as the current "prima facie" provisions now do, but it is quite another to demand compliance with new recordation and registration provisions as in S. 1301. These would be particularly burdensome for publishers of scientific, technical and medical journals, databases, and school and college textbooks produced by multiple non-employee authors. Recording every conveyance in these cases is administratively timeconsuming and, cumulatively, quite expensive. S. 1301's recordation provisions would be a de facto bar to any recovery of statutory damages and attorneys fees by journal and other publishers for infringements occurring several years after registration. In short, we support the abolition of the conditions precedent to suit now found in sections 205 and 411, but strongly oppose the imposition of onerous new conditions on the exercise of copyright rights and meaningful forms of relief. Such new terms would demonstrate this nation's unwillingness to withdraw from the formalities that the rest of the world has long dispensed with, and might even show present Berne members ways to obstruct U.S. and other to them foreign copyright owners in pursuit of relief in their courts. Now is not the time and Berne is most emphatically not the vehicle to make copyright owner's lives more difficult.* Notice - - - AAP supports the provisions in all the bills that would make the use of the copyright notice voluntary. However, we are troubled by the proposed amendments concerning the copyright notice on works consisting of substantial portions of U.S. government works. Since, under Berne, the use of the notice on copies of any work would become completely voluntary, how could this one form of notice be mandatory? And, on a practical level, if a publisher fails to follow the form prescribed by the Copyright office, what then? The bills are silent on this point, but, by abolishing the present law's "cure" provisions, they cause us great concern that copyrights may inadvertently be lost -- a retreat to the disturbing days before 1978 when failure to comply with technical formalities forfeited substantial rights. We strongly believe that the present section 403 should be amended to make the use of the notice, in its present form, optional. Finally, we note that the bills accord certain advantages to use of a notice, but that these do not extend to "masthead" and other "blanket" notices. This failure should be corrected. In the event of adherence, and if Congress believes it necessary to retain some form of section 411, consideration should be given to exempting works of Berne origin. This is permissible under the Convention, and it is not a form of "discrimination" in favor of foreigners -- it is a reflection of the difference in burden and effect between registering "at home" and doing so world-wide; and it avoids a precedent for foreign countries imposing burdensome formalities on protection of U.S. works. - |