That contention is without merit. Clearly, if a choice had to be made, U.S. authors and copyright industries would be far better off if we joined Berne, even if a few countries denied retroactive protection to U.S. works. Our primary objective is to obtain adequate protection in those countries prospectively, and Berne adherence will help accomplish that primary objective. It also is possible — and permissible under Berne - for us to negotiate retroactive protection in those countries without granting retroactive protection here to Berne works. F. Adherence to Berne Requires No Change in U.S. Law on Moral Rights Thus far, the only significant opposition to United States adherence to Berne has come from those few who contend that adherence would, somehow, expand the present scope of protection of authors' "moral rights" in the United States. There is no necessity, however, to insert a moral rights clause in our Copyright Act as a condition for U.S. membership in Berne. Senator Mathias' 1986 Bill (S. 2094, 99th Cong.) did not contain one; S. 1301 does not contain one; and the Administration's bill (H.R. 2962, 100th Cong.. introduced by Representative Moorhead on behalf of himself and Representative Fish) does not contain one. H.R. 1623 does contain clauses which grant (and limit) moral rights, but those clauses are not required for Berne adherence. Three points deserve emphasis. First, the United States already complies with the Berne minimum requirement for moral rights. Indeed, actual enforcement of moral rights, regardless of labels, under common law and various statutes such as the Lanham Act - frequently invoked to protect authors - is more rigorous in the United States today than it is in a number of Berne countries. Berne permits a wide range of moral rights enforcement; the Convention does not provide any means of redress but leaves that up to each individual member country. The choice by a few Berne countries to expand their moral rights protection beyond the Berne standard in no way obligates the United States to do so. Significantly, Dr. Arpad Bogsch, Director General of the World Intellectual Property Organization, which administers Berne, has stated that it is unnecessary for the United States to enact statutory provisions on moral rights to comply with Berne. In his letter of June 16, 1987 to the NCBC, a copy of which is attach. ed, Dr. Bogsch states that United States common law and statutes such as section 43(a) of the Lanham Act "contain the necessary law to fulfil any obligation" under Berne to provide moral rights. Second, U.S. entry into Berne cannot incorporate greater or lesser "moral rights" protection into our law. Under our constitutional law, Berne is not a self-executing treaty, and the only Berne-related changes that can be made in our Copyright Act, other statutes or the common law are those that Congress enacts as part of the Berne implementing legislation. As Dr. Bogsch's letter points out, other Berne countries the United Kingdom, for example - do not consider Berne to be "self-executing." Third, in the implementing legislation, Congress can state explicitly that Berne is not self-executing and that Berne does not in any way affect the present state of American law on moral rights.7 G. Adherence to Berne Would In No Way Affect American Freedom of Expression Some publishers have expressed "profound concerns about Berne" and anxiety that somehow "Berne is inimical to American principles of freedom of expression" because they fear that Article 17 of Berne upholds censorship by national governments. It does not. This same provision in almost the same words - appears in the Pan American Copyright Convention of 1910, to which the United States has adhered for more than 75 years. A similar provision also appears in the 1950 Florence Agreement on the Importation of Educational, Scientific and Cultural Materials, to which we have also long adhered. The provision in Berne says only that the Convention "cannot in any way affect" the sovereignty of member countries on issues of freedom of expression. The Berne provision has not had any such effect on the many members of Berne who also value freedom of expression; and the similar Pan American and Florence provisions have had no such effect on us. 6Article 6bls of the Berne Convention provides in relevant part: "[T]he 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 would be prejudicial to his honor or reputation." 7 For example, it can do this, as S. 1301 does specifically, by formal Congressional findings and declarations that: (i) Berne is not self-executing, and Berne and any U.S. obligations under it are to be effective only pursuant to U.S. domestic law and not Borne itself; (ii) any U.S. obligations under Berne are fully met by the implementing legislation without any moral rights changes; and (iii) Berne and the implementing legislation neither reduce nor expand any rights under any other federal or state laws. WORLD INTELLECTUAL PROPERTY ORGANIZATION (784)-20 June 16, 1987 Dear Irwin, You let me know that the National Committee for the Berne Convention wished to hear my views on whether having statutory provisions on "moral rights" was a condition of being in conformity with the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 1971). In my view, it is not necessary for the United States of America to enact statutory provisions on moral rights in order to comply with Article 6bis of the Berne Convention. The requirements under this Article can be fulfilled not only by statutory provisions in a copyright statute but also by common law and other statutes. I believe that in the United States the common law and such statutes (Section 43(a) of the Lanham Act) contain the necessary law to fulfill any obligation for the United States under Article 6bis. There are several countries of the common law system, and among them the United Kingdom (that joined the Berne Convention exactly one hundred years ago), that are bound by the Berne Convention, including its Article 6bis, which have never had and do not have at the present time statutory provisions on moral rights. Such an absence of statutory provisions was, to my knowledge, never regarded by any United Kingdom or foreign court or government as a lack of compliance with the Berne Convention. It is to be noted and this is well known in legal circles that the United Kingdom, to mention only one example, does not consider the Berne Convention "self-executing" in the sense that one could rely on the provisions of the Berne Convention in any court proceeding in the United Kingdom. Parties before United Kingdom courts can only rely on the UK statutes and the common law of the United Kingdom. Sincerely yours, s/ Arpad Bogsch Director General Irwin Karp, Esq. 40 Woodland Drive Rye Brook, New York 10573 Statement of the COMPUTER AND BUSINESS EQUIPMENT MANUFACTURERS ASSOCIATION on ADHERENCE TO THE BERNE CONVENTION Submitted to the Subcommittee on Courts, Civil Liberties, and the U.S. HOUSE OF REPRESENTATIVES February 10, 1988 CBEMA Computer and Business Equipment Manufacturers Association 311 First Street, N.W. Washington, D.C. 20001 ● 202-737-8888 The Computer and Business Equipment Manufacturers Association (CBEMA) represents the leading edge of American high technology companies in computers, business equipment and telecommunications. It is the trade association of producers of information processing, business and communications products, supplies and services. Its members had combined sales of more than $185 billion in 1986. They employ more than 1.7 million people worldwide. In 1986, the U.S. computer and business equipment industry had exports of $17.120 billion and imports of $14.936 billion. The trade surplus was $2.184 billion. That trade surplus could be larger. One of the factors retarding the growth of the surplus is the violation of U.S. companies' intellectual property rights around the world. And that problem is why CBEMA lends its full support to make the United States a signatory to the Berne Convention. International Intellectual Property Needs High technology rests on intellectual property. The ideas behind computer hardware, software and services are crucial to the industry's future. The disks themselves, the chips and boards mean very little. But the design of the chips, the sequence of commands in software, the algorithms that produce answers are the reasons people buy and use computers. These designs, sequences and algorithms are not objects that can be locked up in a warehouse and guarded against theft. They are ideas that have to be -2 implemented broadly to have meaning. Like books or music, it is the use of computers that is important. To ensure a constant flow of improved technology, governments around the world have granted intellectual property protection to the ideas behind our industry. For software, the primary protection is copyright. This Subcommittee and most notably its Chairman have been crucial in the battle to extend and strengthen copyright law. But today copyrights are commonly violated by international pirates who make unauthorized copies of software and then sell those copies for a fraction of their legitimate market price. In a recent report, the International Intellectual Property Alliance (of which CBEMA is a member) estimates that on the domestic economies of nine developing countries alone, the United States is losing $128 million in software sales annually. And we cannot even begin to estimate the amount we are losing through exports of pirated software from these countries onto the international marketplace. Solving this problem requires a series of carefully-planned steps. The U.S. has already taken some. Government delegations have negotiated vast improvement to software protection in Singapore, Taiwan, Hong Kong and Korea. |