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al convention for the protection of literary and artistic works. In September, 1886 the Berne Convention emerged.

The original Convention was intended to promote five objectives: (1) the development of copyright laws in favor of authors in all civilized countries; (2) the elimination over time of basing rights upon reciprocity; (3) the end of discrimination in rights between domestric and foreign authors in all countries; (4) the abolition of formalities for the recognition and protection of copyright in foreign works; and, (5) ultimately, the promotion of uniform international legislation for the protection of literary and artistic works.

The first Berne Convention was a simple document in which two cardinal principles were established, both of continuing vitality today:

a. The Union: the states adhering to the Convention organized themselves into a Union for the protection of the rights of authors in their literary and artistic works. In forming the Union, the original members contemplated an essentially political as well as legal undertaking: that adherents to the Convention would function as a cooperative unit which would continue in existence regardless of future accessions or withdrawals from the Convention itself.

b. The Rule of National Treatment: one of the cornerstones of international copyright is the rule, first recognized for copyright in the Berne Convention, that authors should enjoy in other countries the same protection for their works as those countries accord their own authors.

During the century of its existence, the Convention has been revised five times to meet changed conditions and technological development affecting authors' rights. Successive texts have generally improved and extended rights accorded authors and copyright proprietors; and, in 1967, the Berne Union confronted the special challenges to copyright policy posed by the emergence of numerous developing countries on the world scene.

2. Successive Revisions of the Berne Convention

a. 1908 Berlin Act. The principal achievement of the Berlin Revision Conference was the prohibition of formalities as a condition of the enjoyment and exercise of rights under the Convention. The minimum duration of protection was set at the life of the author and fifty years post mortem, but made subject to exceptions_for each country so as to make it less than a mandatory rule. The Convention further expanded the minimum subject matter of copyright under the Convention, including photographs. Moreover, the Berlin Revision recognized the exclusive rights of composers of musical works to authorize the adaptation of these works and gave explicit protection to the authors of cinematographic works.

b. 1928 Rome Act. This revision was the first to recognize expressly the "moral rights" of authors: the right to claim authorship of a work and the right to object to modifications of the work which prejudiced the honor or reputation of the author. The Rome revision specifically recognized the right to authorize broadcasting of works, leaving details to be elaborated by national legislation.

c. 1948 Brussels Act. This revision established the term of protection of life of the author and fifty years post mortem as mandatory.

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It added improvements in copyright protection including recognition of the right of public recitation; rules governing mutual recognition of optional "resale royalty" laws (so-called "droit de suite"); extension of the broadcasting article to secondary transmissions, including by wire; and, express recognition of cinematographic works and works produced by processes analogous to cinematography as distinct subjects of copyright protection.

d. 1967 Stockholm Act. For the first time, the implicit right of reproduction was expressly established in the Convention and special rules governing exceptions to that right were also included. Significant new rules relating to reconciling different national rules of authorship and ownership of motion pictures, defining the "nationality" of films for Convention purposes, were added at this revision. Protection was extended to include authors having habitual residence in a Union country, regardless of their citizenship. Finally, this revision established a "Protocol Regarding Developing Countries," which would have allowed developing countries broadly to limit rights of translation and reproduction. The 1967 Stockholm Act has not and will not come into force. It has effectively been superseded by the 1971 Paris Act.

e. 1971 Paris Act. The 1971 Paris Act of Berne-the only Act now open to accession-is essentially the 1967 Stockholm Act with significant revisions made to the Protocol Regarding Developing Countries. The thrust of these revisions will be discussed in the context of relations with developing countries. 12

3. The Administration of the Convention

The Berne Convention is administered by the World Intellectual Property Organization (W.I.P.O.), an intergovernmental organization with headquarters located in Geneva, Switzerland. The W.I.P.O. is a specialized agency within the United Nations system of organizations. It is responsible for the administration of various Unions, each rooted in a multilateral treaty and dealing with aspects of intellectual property. The twin objectives of the W.I.P.O. are to promote the protection of intellectual property throughout the world and to ensure administrative cooperation among Union

states.

As regards copyright law, the W.I.P.O. plays a central role in promoting the vitality of the Berne Union. 13 The Convention itself establishes that the W.I.P.O. serves as the International Bureau of the Union. 14 It is charged with special functions including publication of information concerning protection of copyright and providing expert services to countries of the Union on copyright matters. Its most important functions in respect of copyright, however, are twofold: first, to conduct studies and provide services "designed to facilitate the protection of copyright" 15; and second, the specific

12 For further information about the history of the Berne Convention, see statement of Ralph Oman, Register of Copyrights, House Hearings, supra note 9, June 17, 1987.

13 The W.I.P.O. also administers The International Union for the Protection of Industrial Property. Patents for inventions and marks for goods and services are the most important subject matters of industrial property. In addition, the W.I.P.O. is currently engaged in the drafting of an international treaty for the protection of integrated circuits (semiconductor chip productal 14 Berne Convention Art. 24.

15 Id. at Art. 24 (5).

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responsibilities of the Director General of the W.I.P.O. as the chief executive of the Berne Union and its representative.

Within this framework, the Berne Union through the W.I.P.O. conducts an ambitious program examining the relevance of the Convention to new media of creation, exploitation and consumption of copyrighted works. During the past decade, the W.I.P.O. has facilitated examination within the Union of the copyright aspects of cable television, satellite transmissions, including direct broadcast satellites, the rental of copies of protected works, private copying, and access to protected works by developing countries.

In the recent past, the W.I.P.O. has organized a comprehensive survey of contemporary challenges to the balanced protection of copyright and consumer interests confronting the major categories of works protected under copyright. This endeavor, spanning some seven meetings, has permitted states party to the Berne Convention (in addition to the Universal Copyright Convention [UCC]) to assess the full range of changes in market environments confronting the effective exercise and enjoyment of copyright.

4. The Relationship Between the Berne Convention and the Universal Copyright Convention

By the close of the Second World War, it had become apparent that the entry of the United States and a number of other American Republics into the Berne Convention would require major amendments to national copyright laws and, therefore, was not likely in the near future. In order to bring these states of the Western Hemisphere into simplified multilateral copyright relations with the rest of the world, particularly Berne members, a project to develop a new multilateral instrument was launched.

Under the auspices of UNESCO, with the key objective being rapidly to bring the U.S.A. into multilateral copyright arrangements, the UCC was concluded in 1952. The United States ratified the Convention and became a member in 1955. In 1971, the UCC was revised simultaneously with the Berne Convention in order to permit the introduction in the Convention of provisions identical to the developing country concessions agreed upon for the Berne Convention.

The UCC now has 80 adherents and provides a simple avenue for protection on the basis of national treatment, with few minimum treaty requirements relating to the level of protection. Unlike the Berne Convention, the UCC-both the 1952 and 1971 texts-was drafted so as to require as few changes in United States internal law as possible before adherence. Thus, in certain regards-minimum terms of protection, posture on formalities and definitions of significant terms such as "publication" and "copies" of works--the UCC reflects the law in effect in the United States prior to 1978. The UCC was created with the full assistance of the founding members of the Berne Union. One of the signal and crucial achievements in developing the UCC was the agreement to safeguard the integrity of the Berne Union against erosion by the lower level UCC. The means by which this was achieved is found in Article XVII of the UCC and its Appendix Declaration. Article XVII and the Appendix Declaration of the UCC establish two protective rules: first, that among states party to both the Berne and

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Universal Conventions the terms of the Berne Convention govern; and, second, that a developed state party to both the Berne and Universal Conventions cannot withdraw from the Berne Convention and thereafter rely upon the Universal Convention for copyright relations with states remaining in both Conventions. Howev er, a state withdrawing from Berne would be obligated to protect the works of other states party to Berne and the UCC, even though reciprocal protection is not forthcoming. As a practical matter, however, pre-existing bilateral copyright arrangements of states could continue to serve as a basis for copyright protection even in cases where the "safeguard" provisions of the Universal Copyright Convention come into play.

A question concerns the future role of the Universal Copyright Convention in United States international copyright relations after adherence to Berne. Several observations are in order.

First, U.S. continued adherence to and vigorous participation in the work of the Universal Copyright Convention is obviously of undiminished importance. The United States would establish new or clarified copyright relations with a significant number of states now party only to Berne; however, it must not be forgotten that twenty-six states which belong to the UCC are not members of the Berne Union. With the exception of the Soviet Union, these states are principally developing countries of Africa and Latin America. A large number are neighbors of the United States from Central America and the Caribbean basin.

The membership of these 26 countries in the Universal Copyright Convention is important to the United States for two related reasons: the direct value of the Convention as a basis for protection of U.S. works in these countries; and, even if the United States asserts its influence to bring states outside of multilateral copyright into Berne, achieving global coverage for copyright protection requires us to urge UCC membership as well.

Second, it has been observed that one of the problems with the UCC is a lack of influence within the Secretariat flowing from our withdrawal from UNESCO.16 The questions of United States participation in the UCC and UNESCO are perhaps related, but not necessarily so. Membership in UNESCO is not required for participation in the UCC and the United States continues to serve on the UCC Intergovernmental Committee and participate in the substantive work program of the Committee.

United States adherence to the Berne Convention does not and should not be taken as having any consequence whatsoever for the larger, political question of U.S. re-entry into UNESCO.

5. The Berne Convention and Developing Countries

The Berne Convention has played a constructive role in encouraging national creativity in developing countries through the enactment of national legislation based on the provisions of the Convention itself.17 Today, there is an augmented awareness of the importance of copyright in the developing world.

16 See statement of Allen Wallis, House Hearings, supra note 9, July 23, 1987.

17 See statement of Shahid Alikhan, Director of the Developing Countries (Copyright) Division, of the W.I.P.O., Roundtable Discussions supra note 10, November 25, 1987.

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In 1900, of the twelve states members of the Berne Union only one (Tunisia) would today be considered a developing country. Indeed, with the exception of Japan, the Convention was totally European in membership.

On the eve of the Diplomatic Conference to draft the Universal Copyright Convention in 1952, the number of developing countries party to a text of the Berne Convention had reached eleven of a total of forty-two states. Today, developing countries constitute a slight majority of the 78 of the Berne Union, the bulk having joined in the 1960's and early 1970's. Nine of the states joining in this period declared continuing adherence to the Convention following achievement of independence.

No understanding of the role of the Berne Convention in relation to developing countries is possible without coming to grips with the Stockholm revision conference, the challenge to the integrity of the global copyright system posed by the Protocol Regarding Developing Countries adopted at that Conference and the complex diplomacy which, in 1971 at Paris, resolved the Protocol crisis.

By the mid 1960's the growing number of developing countries in the United Nations system and in the Berne and Universal Copyright Conventions generated political pressures for the inclusion in the Berne Convention of special provisions designed to facilitate access to protected works by developing countries and, in other ways, to permit reservations on obligations deemed too onerous by developing countries. Through a series of preparatory meetings, a program for consideration of such special provisions was developed for the Stockholm Conference.

In a highly charged politicized atmosphere, the Stockholm Conference Protocol Regarding Developing Countries was adopted in a form which would have permitted deep cuts in the levels of copyright protection that developing countries would accord to protected works. The minimum term of protection could be reduced to life plus 25 years post mortem; exclusive rights with respect to broadcasting and retransmissions of broadcasts could have been cut back to the level provided for in the 1928 Rome text, at least for noncommercial broadcast undertakings; translation and reproduction compulsory licensing systems would have been permitted; and, any use of a work (including performance, broadcasting and translation) for "teaching, study and research" would be allowed subject only to compensation at a level accorded national authors.

The struggle for control of the future of the Berne Convention was only one front in a conflict which also embroiled the Universal Copyright Convention. In 1966, efforts by developing countries were initiated in UNESCO to seek repeal of the "safeguard" provisions of the UCC. This effort was put on hold pending the outcome of the Stockholm revision conference.

The crisis which emerged out of Stockholm, though resting on technical matters and involving many different aspects of copyright, was essentially simple: no developed country was prepared to ratify the Stockholm Act because of its integral Protocol. Since a state cannot be bound by the terms of a treaty to which it has not adhered, the Stockholm Act could never serve as a basis to redefine the legal rights and privileges of the parties to this copyright dispute. The response of the developing countries was to threaten a