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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. However, 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 en. actment 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.
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
revision conference for the Universal Copyright Convention, suspension of its safeguard clause, followed by wholesale withdrawals from the Berne Convention. The unravelling of the entire fabric of international copyright seemed possible.
In 1970, largely under the leadership of the United States through the Universal Copyright Convention, a compromise pro gram was developed under which both Berne and the UCC would be revised to include less drastic concessions to developing countries, centered largely upon limited compulsory licensing options for translation and reprint rights in support of educational and de velopmental objectives. This program succeeded and in 1971 Berne and the UCC were jointly revised at Paris.
Since that time, relative stability in the Berne Convention has prevailed. Only two members of the Berne Convention and four members of the UCC have declared their intention, in accordance with the requirements of the two Conventions, to avail themselves of the compulsory licensing privileges of the Conventions. Indeed, as yet, no compulsory licenses have been issued in any of those countries.
The entire experience of the Stockholm Protocol had a material impact on the copyright related activities of the World Intellectual Property Organization. The establishment of a Permanent Committee on Development Cooperation in the Field of Copyright and Neighboring Rights to plan and coordinate the growing development assistance programs of the W.I.P.O. and the creation of the Joint International Copyright Information Service to assist users in developing countries in obtaining licenses from rightsholders in de veloped countries represent positive long-term institutional re sponses.
B. THE BERNE CONVENTION AND INTERNATIONAL TRADE Recently, protection of intellectual property, including copyrights, has become an international trade issue. 17a Improved technology and communications greatly facilitate the global disemmination of ideas, cultural views, and creative activity. Technological changes also facilitate the unauthorized copying of the creative work-product.
The United States, as a leader in the creation and global exploitation of copyrighted works, has a great interest in a strong and viable international copyright system.18 Under the U.S. Constitution, the primary objective of copyright law is not to reward the author, but rather to secure for the public the benefits derived from the authors' labors. By giving authors an incentive to create, the public benefits in two ways: when the original expression is created and second when the limited term of protection expires and the creation is added to the public domain.
If framed properly, copyright protection fosters creative activity and innovation and encourages investment in commercialization of new ideas and technology. Trade in goods protected by American copyright law and the licensing of the rights to copyrighted works
17. See statement of Ambassador Clayton Yeutter, United States Trade Representative, House Hearings, supra note 9, July 23, 1987.
18 See statement of the Honorable Malcolm Baldrige, Secretary of Commerce, id.
have expanded rapidly in the recent past. Domestic industries relying upon copyright protection to stimulate creative efforts represent a broad range of interests including all types of publishing, motion pictures, music and sound recordings and computer software. Goods and services produced by these industries consistenly results in a trade surplus for the United States. A positive trade balance also sustains American jobs thereby stimulating the domestic economy.19
Recognizing the benefits of preserving rights of authors and providing incentives for future activities, our trade negotiators have engaged in a series of bilateral and multilateral efforts to persuade foreign countries to improve their protection of copyrightable works. The American negotiating position has been placed at a disadvantage with regard to improved copyright protection in foreign countries, however, because the United States neither belongs to the Berne Union nor has a copyright law that would allow us to join. Adherence of the United States to the Berne Convention will strongly encourage other countries to adopt and enforce high levels of protection.
In bilateral negotiations, foreign countries often point to the perceived deficiencies in U.S. protection, creating an excuse to avoid making improvements to their own laws. By way of illustration, in bilateral negotiations with Singapore and Korea, the American negotiators were repeatedly asked the difficult question of why the United States was pushing so hard for strong copyright protection in these countries while we did not adhere to the Berne Convention.
The absence of the United States in the Berne Union is also a significant consideration when our trading partners decide whether to adhere to the Berne Convention or to the Universal Copyright Convention, which obligates signatories to provide less projection to copyrighted works. The Republic of Korea, for example, recently joined the UCC rather than Berne as part of that country's revision of its copyright laws undertaken in connection with the unfair trade investigation 20 of Korea's protection of intellectual property. It is difficult for U.S. negotiators to argue that countries such as Korea should adhere to the Berne Convention when the United States has not taken the step itself.
Lack of U.S. membership in the Berne Convention makes it necessary to negotiate a series of bilateral copyright agreements with countries that are members of the Berne Union. Current negotiations with Thailand, a member of Berne, to confirm copyright protection of U.S. works provide an excellent example of the strain placed on U.S. relations resulting from non-adherence to Berne.
1. The ability of the Berne Convention to respond to new technologies of authorship and use, while maintaining an effective separation of copyright and industrial property protection, was noted by several experts at the Geneva consultations. See statements of J-L Comte, DirectorGeneral of the Swiss Federation Office of Intellectual Property; Dr. Roland Grossenbacher, Deputy Director General (stressing the centrality of an "aesthetic surplus” for protection of technologically based authorship); and Jukka Liedes, Special Advisor, Copyright Affairs, Ministry of Education, Helsinki, Finland (stressing the need for complementary copyright and related protection for the widest range of technologic creativity), Roundtable Discussions, supra note 10, November 26, 1987.
20 See section 301 of the Trade Act of 1974 (19 U.S.C. § 2411).
Following adherence to the Berne Convention, the United States will be able to establish copyright relations with twenty-four countries that are members of Berne. Two of these countries-Egypt and Turkey-are substantial trading partners. U.S. adherence to Berne will not only ensure protection of U.S. works but will pro mote trade in copyrighted works. 21
The United States successfully placed the topic of trade-related aspects of intellectual property on the agenda of the Uruguay Round Negotiations under the auspices of the General Agreement of Tariffs and Trade (GATT). The GATT meeting of Trade Ministers in Punte del Este recognized the relationship between trade and the protection and enforcement of intellectual property rights. Implicit in this recognition is the presumption that inadequate and ineffective protection of intellectual property rights can result in trade distortions.
U.S. membership in the Berne Union would contribute to the success of these multilateral negotiations.
First, adherence will mainfest a firm and sustained commitment to achieving strong and uniform protection for intellectual property worldwide. Our trading partners will no longer be able to question the U.S. political will to gain that objective. Many participants in the Uruguay Round negotiations on intellectual property view increased participation in existing international conventions as the initial step in the protection of intellectual property rights. U.S. adherence to Berne could provide an incentive for other countries to reexamine their participation in international agreements.
Second, the substance of any multilateral agreement resulting from the Uruguay Round effort will undoubtedly reflect the international consensus embodied in the Berne Convention. U.S. membership in the Berne Union means that our trade negotiators can argue strongly for responsible standards without letting inconsistencies in U.S. copyright law change the focus of discussion as to why the U.S. currently does not-or cannot-belong to Berne. The United States should not be perceived as imposing a double standard on the rest of the world.
There is a potential danger of establishing international legal standards through trade agreements and GATT negotiations which, however desirable to particular private interests, are higher than those of our domestic law. Our trade negotiators obviously do not have the power to legislate. Only Congress can pass new or amend old laws.
The Berne Convention represents an international consensus on copyright protection. The United States should be in a position to take advantage of that consensus, to encourage other countries to join the common ground, and to use it to encourage expansion of legitimate trade. As to the latter, the relationship of Berne adherence to promotion of U.S. trade is clear. American popular culture and information products have become precious export commodities of immense economic value. That value is badly eroded by low international copyright standards. Berne standards are both high, reasonable and widely accepted internationally. Lending our pres
21 See statement of Gyorgy Boytha, Director General of the Bureau for the Protection of Author's Rights Budapest, Hungary, Roundtable Discussions, supra note 10, November 25, 1987.