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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 program 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 developmental 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 developed 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.

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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.

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 protection 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.

19 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).

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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 promote 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.

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tige and power to the international credibility of those standards will promote development of acceptable copyright regimes in bilateral and multilateral contexts. Ultimately, a strong and viable international legal regime will develop to the benefit of the United States, not only to the advantage of proprietary interests but also to the public good.

C. PHILOSOPHY OF THE LEGISLATION

Although vigorous debate and varying viewpoints occurred during the Subcommittee's inquiry and the Committee's consideration of particular points identified in the proposed legislation, an overwhelming consensus existed on two objectives: to utilize a minimalist approach, amending the Copyright Act only where there is a clear conflict with the express provisions of the Berne Convention (Paris Act of 1971); and further, to amend only insofar as it is necessary to resolve the conflict in a manner compatible with the public interest, respecting the pre-existing balance of rights and limitations in the Copyright Act as a whole.

In determining whether to amend and how to amend, the paramount goal of the Berne Convention Implementation Act of 1988 (H.R. 4262) is to place American law in compliance with the provisions of the treaty and not necessarily to seek an ideal solution to the problem. Ideal solutions to issues take much congressional time, require careful examination of often conflicting interest, and generally lead to the legislative processing of a bill designed to solve a carefully defined question. That methodology is not used for the Act. Rather, the approach used in all sections of the bill, including the findings and declarations, is the same: to modify American law minimally to place it in compliance with the provisions of the Berne Convention while respecting the constitutional provisions that apply to all such legislative endeavors.

It must be stressed that the "minimalist" approach taken to legislation enabling the United States to join the Berne Union does not mean minimizing the requirements of the treaty, nor casting a blind eye towards the long term implications of this step for the development of international copyright law. The objective of the Berne Union is development of "effective and harmonious" copyright laws among all nations.22 Once the United States becomes a member of the Union, other members will expect from us a due and careful regard for their values; and, by the same token, other countries will have to consider the deeply felt legal, economic and social values reflected in American copyright law and which we believe are important elements of a responsible international copyright system.

The balance between national values and international harmony embodied in the Berne Union has been best expressed by Professor Paul Goldstein:

When I think of the Berne Union in a larger frame, the
picture that most frequently recurs is of a great number of
ships-some large, some small, some grand, some modest-
moored to a dock. There are as many differences between

22 Berne Convention Art.1.

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the ships as there are cultural, economic and political dif-
ferences between nations. But there are important similar-
ities, too. And, most important, all of the ships, grand or
modest, and whatever their differences, rise and fall with
the same tide.2

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Nearly twelve years ago Congress passed the Copyright Act of 1976, the first general revision of our copyright law since 1909. Congress did so only after years of work-starting in the early fifties, continuing with 22 days of hearings and 51 days of mark-up in 1965, and ending with 17 days of hearings and 25 days of mark-up in 1975-76.

The Copyright Act of 1976 was a significant legislative achievement, one that has worked well over the years. Congressional legislators, then and now, understand that copyright legislation raises unique difficulties. While a relatively obscure discipline, copyright touches every American in their homes, schools, libraries, restaurants and workplaces. Determining the scope of a law which deeply affects how we enjoy books, films, music, television programming, computer software, information products and services, architecture and the visual arts requires great caution, particularly in a rapidly changing society such as ours that seeks a balance among the free flow of information, competition in the marketplace, and the stimulation of technological change.

It can safely be stated that Congress drafted and passed the 1976 Act with a "weather eye" on Berne.24 In the view of the Committee, the United States implicitly chose not to join the Berne Union in the past because the Congress did not want for our society the kind of copyright laws that the Convention required. There being general consensus today that the United States should adhere to the Convention, the proposed legislation therefore signals both recognition that many obstacles to adherence were removed by the 1976 revision and a willingness to modify further our laws in order to join the Union.

H.R. 4262 was drafted after examining the level of Berne obligations under the current Paris Act, conscious of the practices of those states party to Berne at a similar stage of development as United States and that generally share our values of free speech and artistic freedom. Relying on a minimalist approach, modifications to American copyright law required by the terms of the treaty do not amount to a major structural rewrite of the Copyright Act of 1976. Congress must, however, move that Act somewhat further along in several areas where it previously stopped short of Berne compliance.

The proposed implementing legislation is clearly within Congress' power to modfy, amend or expand this country's intellectual property laws. The United States Constitution confers this authority when it provides, "[t]he Congress shall have Power to Promote the Progress of Science and Useful Arts, by securing for limit

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23 Statement of Paul L. Goldstein, Professor, Stanford University School of Law, House Hearings, Supra note 9, February 10, 1988.

24 See 133 CONG. REC. (daily ed. March 16, 1987) (remarks of Representative Kastenmeier)

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