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The State Department believes that a modernization of the copyright law to take into account the important technical advances in the copyright field is in the interest of both the authors and the users.
My comment will be directed to those sections of H.R. 2223 which relate to the conduct of our foreign relations and therefore are of special interest to the Department of State. These sections are the following: Section 104 regarding subject matters of copyright and national origin; section 302 on the duration of protection; and section 601 on restrictions against importation of certain copyrighted materials from other countries.
Section 104 is relevant to our international interests in that it specifies the occasions when foreign works, that is, works produced by nationals of countries other than the United States, will be granted C.S. copyright protection. Essentially, section 104 continues the reciprocity approach contained in the present law with respect to published works; that is, the United States gives foreign citizens protection equal to that given by the foreign country to U.S. citizens. It is thus consistent with generally accepted international practice in most countries and has the support of the Department.
Of particular relevance to the Department's interests is section 104 (c) ("Subject Matter of Copyright: National Origin") which deals with the possibility that a foreign government might take action in the C.S. courts to divest its citizens or authors of rights to their works or to block publication of their works within the United States. We do not have any evidence that an action of this nature is likely to occur. But if it did, it would represent undesirable official interference with the freedom of individual expression, and we therefore believe that it should be guarded against.
It is important to note that the international copyright system embodied in the Universal Copyright Convention is intended to "insure the respect for the rights of the individual and encourage the development of literature, the sciences, and the arts." These convention obligations should be kept in mind with respect to any action to suppress free communication in the United States of ideas and literature wacceptable to authorities of another member state of the convention.
We understand that other U.S. Government agencies are drafting language to accomplish the purpose of section 104(c) in a technically different manner. We have not reviewed these proposals and there. fore are unable to express our opinion on them. However, we support the aim of appropriately drafted legislation that would deny effect in U.S. courts of a foreign nation's laws or practices designed to deprive the authors of that country of the rights to publish and protect their literary and artistic works in the United States.
Section 302 deals with the duration of copyright, that is, term of protection. It is one of the most important, if not the most important provision in the copyright revision bill. Essentially, section 302(a) provides for a copyright term of the life of the author plus 50 years after his death. Such a term of protection would be more in line with the practice of most countries of the international copyright community and would also remove a major obstacle to the possible adherence of the United States to the Berne Convention for the Protection of Literary and Artistic Works. Our membership in the
Berne Convention would facilitate and simplify international copyright protection for U.S. nationals. Therefore, we strongly support the term of copyright protection proposed in section 302.
Section 601 concerns the so-called “manufacturing clause" which is designed basically to protect the U.S. printing industry. As you know, this section prohibits the importation into or the distribution within the l'nited States of English language books authored by U.S. nationals living in the United States, or domiciliaries, unless the copies are produced in, or are made from type set in, or plates made in, the United States or Canada.
We are pleased that section 601 would, on the whole, move in the direction of liberalizing the present manufacturing clause. For example, a violation of the manufacturing clause as regards a book would not affect the right of the copyright proprietor to authorize a motion picture version or other use of the book. It would merely a trect enforcement of copyrights with respect to publication as a book. Further, the number of copies manufactured abroad that may be imported has been increased from 1,500 to 2,000.
Despite this liberalization, however, section 601 would continue the protectionist features of the manufacturing clause. This kind of protection is fundamentally inconsistent with basic U.S. policy in international trade. For several decades we have pursued a policy of reducing tariffs and nontariff barriers in the interest of promoting an open international economic system. We believe that the broad trading interests of the United States and its people continue to be the best served by a general reduction of trade barriers including nontariff barriers. This is the policy we are carrying forward in the current multilateral trade negotiations being undertaken in Geneva under the authority of the recently enacted Trade Act.
During this round of negotiations attention will be focused particularly on nontariff barriers, and one of our major negotiating objectives will be to reduce or eliminate nontariff barriers of other countries which restrict U.S. trade. We believe that it is important to note this inconsistency in considering the continuation of the manu. facturing clause.
Furthermore, the exception for Canada introduced by this bill into the manufacturing clause would violate our obligations under the GATT and various bilateral treaties. The United Kingdom has protested and we expect that other foreign countries which are being discriminated against by this measure will protest, thereby introducing an element of discord and potential retaliation into our relations with those countries.
Specifically, Mr. Chairman, the exception would violate our obligations under article XIII of the GATT which requires nondiscriminatory application of quantitative restrictions, and the United States would be obligated to seek a special waiver from the GATT contracting parties to permit this exception. This procedure would be particularly undesirable at this time in view of the opening of the new round of multilateral trade negotiations at Geneva. The exception would also violate commitments in various FCN treaties, which we have concluded with most of the other industrialized nations.
These treaties normally impose obligations on the United States to notify and consult before it introduces nontariff barriers on important products of the other country, and forbids the prohibition of the other country's products unless the product of third countries are similarly prohibited.
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In conclusion, the Department of State believes that the updating of the U.S. copyright law is most desirable, and we support the enactment of H.K. 2223. A modernization of the copyright law to take into account the important technological advances in the copyright field is in the interest of all members of the copyright community. It is also important in bringing the United States in step in copyright with the other principal countries of the world. We hope, Mr. Chairman, that the objections to the bill that I have noted will be given serious consideration by your committee.
Thank you, Mr. Chairman.
Mr. KASTENMEIER. Thank you, Mr. Biller. I appreciate your statement and your appearance. In the past, we have had Mr. Harvey Wirter from time to time representing the Department and we know him well.
May I ask as to what extent does your Department coordinate its view with respect to the legislation under consideration with either the ('opyright Office, the Department of Commerce or the Department of Justice?
Is there any particular coordination of views with respect to, say, representing the view of the Administration on the bill?
Mr. BULLER. Yes, Mr. Chairman, I think there is. We maintain daily contact with other agencies on the international aspects of the bill. We are aware of the views of the other agencies and certainly on an informal basis there is a great deal of consultation.
Jír. KASTEN MEIER. You indicated you opposed one section, referring to the manufacturing clause section.
Mr. Biller. Yes, sir.
Mr. KASTENMEIER. But, you indicated a reservation about section 104(c). I wonder whether you could, by using a hypothetical, demonstrate precisely the effect of that in terms that we would understand.
For example, if country x would insist that copyrights within its nation were, in fact, state held or state owned it could move in our forums to represent that state as the holder of a copyright, notwithstanding the fact that the author we would normally recognize him to be a different entity than the state. Is that what you're driving at?
Mr. BıLLER. No; our position is that we favor the enactment of that Section in oriler to promote to the maximum the individual freedom of authors. If a particular author lived in a country whose domestic system required that the government of that country hold the copyright and that author managed to publish his work in the United States, even though the government of his country was the legal holder of the copyright, we would favor the enactment of this legislation to prevent that government from suing in the l'.S. courts to prevent the publicat:on.
Mr. KisrESMEIER. I can understand the policy reasons on both sides of that one. It would be very difficult. I understand the basic motivation.
How could you expect to hare some continued comity with that government with respect to the field of its endeavor!
Mr. Biurn. Well, there are two points I would like to make. First, we believe that the importance of promoting freedom of thought and
the importance of communication across international borders is more important than some of the other considerations involved. Second, with regard to some of the countries which have this kind of system, we have no indication whatsoever that they have any intention of bringing suit in American courts.
So, we don't believe it is a real problem that we would have. In the case of the government of the Soviet Union, for example, which has such a system, we have no indication that they will bring suit in American courts to prevent the publication in the United States of works of dissident Soviet authors.
Mr. KASTEN MEIER. I see. It is the policy of the State Department, notwithstanding the success of the Universal Copyright Convention and its membership, that we should be in a position to adhere to the Berne ('onvention nonetheless; is that correct?
Mr. BiLLER. Yes.
Mr. KASTENMEIER. In your view, does the passage of this bill, in its present form, qualify us for entry, for adherence to the Berne ('onvention!
Mr. BILLER. What it would do, Mr. Chairman, is remove one of the principal obstacles that now exists to our adherence, that being the term of protection, by extending the term of protection to the lifetime of the author plus 50 years. That would remove that ob-tacle because tlini is the term provided for in the Berne Convention. There are some other obstacles which would have to be overcome, but I think it would be quite possible to work them out.
Mr. KASTEN MEIER. Are those obstacles outside of the perimeter of what the statutes provide for?
Jir. BILLER. Yes, sir. Mr. KASTENMEIER. You have discussed the term in that connection? Is it not the fact that there are one or more countries moving away from life plus 50; is there not at least one major European country that has moved to a longer term than that?
Mr. BILLER. I am not aware of it, Mr. Chairman.
Mr. KASTENMEIER. As far as you are aware, all the Western European countries have life plus 50?
Mr. BILLER. I believe so.
Mr. KASTENMEIER. Perhaps I ought to put it this way, what countries in the world other than ourselves have a term other than life plus
Mr. BILLER. I don't have a list of them with me. If you would like, I can submit such a list for the record.
Mr. KASTENMEIER. Thank you. We would appreciate that.
MUSICAL, AND ARTISTIC WORKS
BACKGROUND The copyright duration of life of the author plus 50 years was first advanced as an international standard in the 1908 revision of the Berne Union. Although this term was not made obligatory at that time, in 1918 the Berne Convention was amended to make life of the author plus 50 years the minimum terin of duration for members of the Convention. Today the "life plus fifty" standard is the most widely accepted standard for the duration of copyright protection.
The following list of national copyright durations was compiled from Copyright Laws and Treaties of the World or from other more recent sources.
Life of the Author plus 50 years (74 countries)
Argentina; Australia; Austria; Belgium; Bulgaria; Burundi; Cameroon : Canada ; Central African Republic; Ceylon (Sri Lanka) ; Chad; China, Republic of ; Congo (Brazzaville); Costa Rica ; Cyprus; Czechoslovakia ; Dahomey ; Delmark; Ecuador; Egypt, Arab Republic of ; El Salvador, Republic of ; Ethiopia, Empire of; Fiji; Finland; France; Gabon; German Democratic Republic; Greece; Guatemala; Holy See; Hungary ; Iceland; India; Indonesia ; Republic of Ireland; Israel ; Italy; Ivory Coast; Japan; Laos; Lebanon; Liechtenstein ; Luxembourg; Madagascar; Mali; Monaco; Morocco; Nepal; Netherlands; New Zealand; Niger; Norway; Pakistan; Paraguay; Peru; Philippines; Portugal; Rwanda; San Marino; Senegal ; Sierra Leone ; Singapore; South Africa, Repub lic of ; Sweden; Switzerland; Syrian Arab Republic; Togo; Tunisia ; Turkey; Uganda; United Kingdom; Venezuela ; Yugoslavia; and Zaire. Life of Author plus 20 years
Ghana; Iraq; Kenya ; Liberia ; Libya; Malawi; Malaysia ; Malta ; Mauritius ;
Bolivia ; Chile; Dominican Republic; Iran; Jordan, Hashemite Kingdom of ;
Germany, Federal Republic of.
Colombia ; Cuba ; Panama; and Spain.
In the following countries the duration will vary depending on the category of the author's heirs. In all the countries listed below, an author enjoys copyright protection during his lifetime. The term beyond the author's life, however, is controlled by the nature of the author's heirs. (3 countries)-Albania; Haiti; and Romania. Miscellaneous Categories (Unrelated to life of the Author)
Afghanistan 20 years; Burma, Union of 10 years; Honduras-10, 15 or 20 years; and United States--28 years, renewable for 28 years. Countries without copyright laws, or for which accurate information is unavail
able Algeria ; Andorra ; Bahrain ; Barbados; Botswana ; Cambodia; China, Peoples Republic of; Equatorial Guinea; Gambia, Guinea, Republic of ; Guyana ; Jamaica ; Kuwait; Lesotho; Maldive Islands; Mauritania; Mongolia ; Nauru, Republic of ; Saudi Arabia; Somalia ; Southern Yemen; Sudan; Swaziland ; Trinidad and Tobago; Upper Volta ; Viet-Nam, Republic of ; Western Samoa; and Yemen.
Vír. KASTEN MEIER. I would like to yield to the gentleman from Illinois.
Mr. RAILSBACK. How serious is the Canadian exception you have alluded to on page 6; what effect could that have as far as preventing us from joining the Berne Convention?
Mr. BILLER. I think the effect on our general trade policy and the negotiations we are engaged in in Geneva are more serious than tho effect on our joining the Berne Convention.
What the provision does, Mr. Congressman, is introduce a new element of discrimination, which is quite clear and is patently discriminatory, in our legislation.