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a suggested standard for minimum level copyright protection without being

deemed hypocritical for providing somewhat different, though high level, standards of protection.

If a developing country joins the UCC, recall that

the standards would be about the same as Berne since both conventions allow the same exceptions for developing countries.

3. United States authors will not gain additional protection abroad through our adherence to the Berne Convention.

Proponents of United States adherence to the Berne Convention

concede that it offers no immediate economic benefits to United States copyright owners whose works are exploited abroad. This is so because United States authors already receive the economic benefits of Berne protection from Berne member states that are also UCC members through the national treatment provisions of the UCC, and from other Berne members through the simultaneous publication provision of the Berne Convention (the "back door to Berne").

problem

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Berne adherence is not likely to resolve our most pressing copyright piracy. Most piracy of United States copyrighted works occurs in countries that are outside the Berne Union and the UCC, and are likely to remain outside regardless of United States adherence to Berne. Even if the se pirate nations do join the Berne Convention, there is no guarantee that the piracy that takes place there will evaporate.

Two Berne states, Thailand and Egypt, are considered piracy centers. There is little evidence that their membership in the Berne Union has resulted in increased enforcement of their copyright law, or deterred piracy of works of authors of Berne countries or the United States. The sole enforcement mechanism of the Berne Convention, resort to the International Court of Justice, has never been invoked and can be reserved away.

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The United States has far more negotiating leverage through bilateral arrangements, where we can extend or withdraw trade concessions depending upon the maintenance of adequate and effective copyright protection by the other country.

Finally, if proponents of adherence are correct that the United States can adhere to Berne with little, if any, amendment to the United States copyright law, then the supposed high standards of Berne protection are in fact imaginary. This highlights the fact that the claimed benefits of Berne adherence are speculative and remote.

4. United States adherence to Berne would, in fact, require drastic changes to the United States copyright law that would upset the traditional balance in our Taw between the owners and users of copyrighted works, and deprive us of flexibility in legislative Solutions.

Were there no price, the United States could join the Berne Convention for what it is worth: at a minimum, an opportunity to explore in a systematic, scholarly, and consultative way, the ongoing problems of modernizing copyright law. But adherence to Berne will cost the United States the high price of substantial changes in our law, and potential disruption of established business practices structured upon that law, and will limit future legislative options. Any substantive international treaty entails obligations for the members. That is the whole point of multilateral intellectual property conventions. They bind members to certain standards. The Berne Convention is renowned as the most specific and definitive set of intellectual property standards. Either the obligations are real and binding on members,

including the United States, if it joins, or the standards are merely goals that a country adopts as it chooses.

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The Berne Convention has a 100 year history. It represents an important system of high level copyright protection. The United States is a nation of laws. If we join Berne our laws must be consistent with every reasonable Berne obligation not because European states would criticize us

or take us to the International Court of Justice but because we, as a people, respect our laws, and our own courts will be vigilant to enforce our treaty obligations. And yet, some of the strongest supporters of Berne

adherence want the United States to shirk its obligations.

For example, any moral rights amendment to the Copyright Act would
The concept of moral rights embodied in the Berne

be highly controversial.
Convention was derived from European notions of the natural, inalienable
rights of authors. The natural rights concept of intellectual property is
inimical to the statutory and common law copyright jurisprudence that has
developed in the United States, which incorporates the premise that copyright
is a freely alienable economic right.

Even if Congress legislated a narrowly-prescribed, alienable moral rights provision, there is a strong possibility that adherence to Berne would, over time, lead to expanded moral rights protection in the judicial interpretation of the United States law. Berne-mandated copyright provisions may well be examined by courts against the backdrop of European moral rights precedents.

The situation could be even worse if Congress takes no decisive action regarding moral rights. Although proponents of adherence argue that adequate moral rights protection already exists in the United States through the loose strands of contract and tort, trademark, unfair competition, and defamation law, the wisdom of absorbing fragments of these state law, common law, and federal Lanham Act provisions into a national treaty obligation to

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provide moral rights seems highly questionable and does not satisfy the treaty obligation for uniform national protection. The benefits of and conditions on moral rights that would ultimately, uniformly prevail pursuant to judicial interpretation of the requirements of the Berne Convention would be entirely unpredictable. Furthermore, since questions remain as to whether the Berne Convention is self-executing, courts may take the position that the federal judiciary is in the superior position to interpret the scope of the moral rights provisions of the Berne Convention as they apply to U.S. and foreign authors through United States obligations under Berne. It is impossible to prevent this through nonself-execution language. Either our law is compatible when we join Berne or we are in breach of our treaty obligations.

Especially

since private rights are involved, redress would have to be found either in the courts or by changing the law.

Other amendments to the Copyright Act that may be required by adherence to Berne would raise serious concern. Past efforts to join Berne foundered on the rock of retroactivity. Any provision for retroactive copyright protection for works which have fallen into the public domain in this country prior to U.S. adherence to Berne would be contrary to United States legal principles. Yet, if we fail to provide authors of Berne members retroactive protection, we breach the Convention, and we may injure our own bargaining position in negotiating for retroactive protection of works of U.S. authors under bilateral treaties.

The elimination or amendment of the jukebox compulsory license would upset the industry consensus recently achieved as to the royalty rates and administration of the performance license. There is, moreover, a major political disadvantage to maintaining a compulsory license system in an area seemingly proscribed by the Convention. One of the major advantages to the

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Berne Convention for United States copyright proprietors is that it prohibits compulsory licensing systems in many areas. If the United States maintains a compulsory license system, albeit a fair and balanced one, in an area proscribed by the Convention, then foreign nations may use that justification for establishing their own compulsory licensing systems. The se compulsory licensing systems would likely be prejudicial against U.S. copyright proprietors.

as a

By creating copyright protection for architectural works, Congress would make substantial changes in the business transactions in our large domestic construction industry, as well as in the basic process of transferring rights in real property. These changes would affect consumers nationwide. Protection for designs of industrial articles may also be affected by Berne adherence.

Finally, adherence to Berne will affect the way Congress itself may legislate creative solutions to the dilemmas posed for copyright owners and users by the development of new technologies. When we are bound by the provisions of the Berne Convention, Congress may not limit exclusive rights except as provided by the Convention, even if all parties are willing to compromi se on a compulsory license or other such limitation on exclusive rights. Berne has a long interpretive history that holds that if the right is not limited specifically, then the Convention must be interpreted to favor the rightsholder.

Taken as a whole, these amendments mandated by United States adherence to Berne represent a dramatic shifting of the rights and liabilities of U.S. copyright owners and users. The cost of this shifting of the balance of rights, limitations, and conditions of copyright we have traditionally relied on in the United States is too high a price to pay for the speculative