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advantages of Berne adherence. And this is truly a case of buyer beware. Once we Jain Berne, we cannot withdraw. Under the Berne safeguard clause of the UCC, we would lose UCC protection in Berne states; we would have no multilateral protection. Therefore, if our courts hold that we are in breach of Berne obligations, we will have no choice but to amend the law. The Berne Convention will govern statutory copyright law. Indeed, that is its purpose:

to set worldwide copyright standards.

We are already members of an adequate level but flexible treaty the UCC. Through this treaty we give and receive adequate and effective international copyright protection. The UCC was crafted by United States and European experts with a weather eye on our law. It accommodates our law fully, but gives members flexibility to adopt higher levels of protection. Against pirate nations, we can use bilateral negotiations and trade incentives. combination of UCC and bilateral protection will give us the necessary leverage to protect our works abroad without forcing unwise changes in our domestic copyright policies.

A

That Congress will do

Many of the arguments

The Copyright Office in stating the principal arguments in favor of and against United States adherence to Berne has attempted to present the strongest arguments of each point of view equally. We have not attempted to evaluate the credibility or strength of the arguments. after many more hours and days of hearings and debate. of both sides could be rebutted. We leave that rebuttal to future witnesses. By stating the "pros" first and the "cons" second, the Copyright Office in no way suggests or implies that the "cons" are more credible. The Office has merely tried to bring the most contentious issues into sharp focus. We see

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our role primarily as providing information about the history of Berne, the nature of the treaty obligations, and possible divergences between Berne and existing United States law. As always, the Copyright Office is at the disposal of the Subcommittee if you wish us to undertake further studies or analyses of particular arguments or issues. Thank you, Mr. Chairman. I will be pleased to respond to your questions now or later for the record.

105.

This list is drawn from a comparison of Berne and UCC membership as of
January 1, 1987, as printed in Copyright (January 1987) at 6-8 and 12.

106. "Unclear" relations are those in which a state has attained independence since 1943, and may or may not be honoring obligations incurred under its former political status. For registration purposes the Copyright Office treats "none" and "unclear" countries the same: registration is ordinarily refused.

Mr. KASTENMEIER. Ms. Schrader.

Ms. SCHRADER. Thank you, Mr. Chairman.

As you said in your introductory remarks, the bill does raise the importance of issues that seem to exist concerning U.S. adherence to Berne and the kind of legislation that is necessary to make our law consistent with the obligations of Berne.

One issue that may be seen as overriding the whole matter is that of whether the Berne Convention is capable of direct application by the United States courts, if a claimant comes before a court and claims rights under the Convention.

As Mr. Oman has already mentioned, the bill does include language, both by way of a Congressional finding against self-execution of the treaty, and also language to be embodied in the Copyright Act itself, to guard against direct application of the Berne Convention.

It would be our view that it is necessary to have langauge in the amendment to the Act itself and not simply in Congressional declarations.

Another important step that the bill takes to guard against selfexecution is to make the effective date of the changes in the law one day after United States adherence to Berne, this to make clear that the statute is later in time and presumably, therefore, is superior in terms of the Constitution to this particular treaty.

Another major issue that Mr. Oman has identified is retroactivity.

In this case, the bill has chosen to make a direct statement that there cannot be any recapture of works in public domain so that once the work is in the public domain in the United States, it cannot be recaptured because of the United States obligations under the Berne Convention.

This is, of course, one of the issues that needs to be looked at very carefully. In the past, retroactivity has been regarded as a major stumbling block to U.S. adherence. The Senate, for example, in ratifying the Universal Copyright Convention more than 30 years ago identified retroactivity as one of the reasons that we had not till then been able to ratify the Berne Convention.

Mr. KASTENMEIER. May I interrupt to ask how commonly in and in what context are works in the public domain recaptured?

Ms. SCHRADER. In the past, the United States law has allowed recapture because of conditions that came about during the World Wars.

After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain principally by aliens of the countries with which we had been at war.

Those, of course, were limited in time and terms. They usually had to register with the Copyright Office by a certain date to be sure that they were claiming the protection. And also these laws would attempt to safeguard the interests of users who had been making use of the works while they were in the public domain. Basically, there would be a general provision that undertakings that were legitimate at the time when the undertaking was begun, could be completed and usually a provision that if one had created

a derivative work, one could continue to make reasonable use of that derivative work, notwithstanding that an earlier underlying work might be subject to renewed protection because of this special recapture legislation. In other words, a savings clause. So those clauses were included in copyright legislation passed after both of the World Wars.

And that is one of the possibilities that one might consider if you were to give some limited form of retroactive protection.

Of course, you will hear from other witnesses. There is a specific article in the Convention that deals with retroactivity, Article 18. It would seem to say that you must make some provision for the possibility of retroactive protection.

Generally, we can determine the limits of that retroactivity. We can certainly place reasonable limits on it. Certain provisions, such as savings clauses, would be very reasonable and as would time limits during which one could recapture the rights.

But there is an article in the Convention that apparently needs to be dealt with in one way or another.

Mr. OMAN. Mr. Chairman, could I just put that in perspective. The retroactivity problem, I think, would be in some people's minds far greater than it would be in actuality. Most works of commercial significance eligible for protection under Berne already enjoy copyright under U.S. law either by first publication here or through the benefits of the Universal Copyright Convention. So we are not talking about recapture of a vast body of work.

It would be the unusual case, I think, when works that still have any commercial viability are in the public domain of the United States. It's a small group of those works that would be recaptured if there were a retroactivity provision.

Ms. SCHRADER. Then to continue to other points addressed by the bill, the bill would establish for the first time in the United States protection for architectural works. This would be a major change in our law. The bill contains a number of limitations. The protection would be only for the artistic character of the building, and there are a number of exceptions to what the copyright owner can do with respect to the copyright in the work of architecture. But this is an entirely new subject matter, and it is one upon which, hopefully, there will be a lot of additional testimony. You may want to consider further limitations.

One might, for example, exclude residences or express a higher standard of artistry as being required to protect the building higher than is applied for the usual work of art.

Mr. KASTENMEIER. In that respect, as you know, I guess it is fair to say that we haven't been pressed very much to specifically protect architecture in terms of copyright.

On the other hand, there has been significant interest over the years in so-called design protection, even type face protection specifically.

Would design protection, as advocated by some, include architectural works, or are they inconsistent? What I'm asking is the contrast between what appears in Berne in the interest in this country, in additional coverage, additional subject matter when it comes