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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 tu 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 copy. right 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.


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.23 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 achieve ment, 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 stimu. lation 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 some what 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 Promote the Progress of Science and Useful Arts, by securing for limit

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

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


ed Times to Authors and Inventors the exclusive Right to their Writing and Discoveries." 25

Sound copyright legislation is necessarily subject to other consideration in addition to the fact that a writing be created and that exclusive rights be protected only for a limited term. Congress must weight the public costs and benefits derived from protecting a particular interest. “The constitutional purpose of copyright is to facilitate the flow of ideas in the interest of learning." 2ő

The Constitution does not establish copyrights, but simply pro vides that Congress has the power to grant such rights if and as it thinks best. As this Committee observed during the 1909 revision of the copyright law, “[n]ot primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.” 27 This statement still rings true today. Recently, the Supreme Court confirmed its validity by stating that the monopoly privileges that Congress may confer on creators of intellectual property "are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved.” 28 Stated otherwise, the primary objective of our copyright laws is not to reward the author, but rather to secure for the public the benefits from the creations of authors.

The framers of the Constitution assigned to Congress, the most politically representative of the three branches of the federal government, the role of establishing intellectual property laws in exchange for public access to creations. In this context, the founding fathers contemplated a political balancing of interests between the public interest and proprietary rights. Congress struck that balance when it established the first patent and copyright laws. As this country has developed and as new technologies have burst upon the scene, Congress has adjusted this nation's intellectual property laws to incorporate new subject matter and to redefine the balance between public and proprietary interests. The Berne Convention Implementation Act of 1988 is a continuation of that process.

Today, we live in an age of rapid technological change, growing internationalization of various aspects of law, and increasing importance of intellectual property in world trade. The congressional role may be more complicated, but its objectives remain essentially unchanged. Congress must engage in the delicate assessment of equities between the public interest and proprietary rights.

The Berne Convention Implementation Act of 1988 is rooted in the proposition that choices are not impossible. The balancing of interests is possible. Both sides-public and private interests-will benefit.

26 U.S. CONST. art. I. 88, CL 8

28 Statement of L. Ray Paterson, Professor, University of Georgia School of Law, House Hearings, supra note 9, June 17, 1987, see also statement of August W. Steinhilber for the Educators' Ad Hoc Committee on Copyright Laws, id. February 10, 1988.

27 H.R. REP. No. 2222, 60th Cong. 2d Sess. 7 (1909). Similar language occurs in the Senate Report. See S. REP No. 1108. 60th Cong., 2d Sess. 7 (1909).

2* Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984).




Section 1 of the bill sets forth the short title: the "Berne Convention Implementation Act of 1988."

SECTION 2. REFERENCES TO TITLE 17, UNITED STATES CODE Section 2 provides, for drafting clarity, that whenever in the pro posed legislation an amendment is expressed in terms of an amendment to or repeal of a section or other provision, the reference should be considered to be made to a section or other provision of title 17, United States Code.

SECTION 3. DECLARATIONS Section 3 sets forth three congressional declarations. Subsection (1) describes the Berne Convention, and declares that the Convention is not self-executing under the Constitution and laws of the United States. According to subsection (2), it is only through appropriate domestic law that the United States will carry out its obligations under the Berne Convention. The Convention is not otherwise enforceable. Subsection (3) states that the amendments made by this implementing legislation, together with the laws in effect on the date the implementing legislation is enacted, are sufficient to satisfy the obligations of the United States in adhering to the Berne Convention. No other rights or interests shall be recognized or created for the purpose of satisfying these obligations.


Section 4 gives guidance to the courts about how to construe U.S. adherence to the Berne Convention.

Subsection (a) describes the relationship between the Berne Convention's provisions and our domestic law. It states in paragraph (1) that the provisions of the Convention shall be given effect under title 17 of the United States Code, as amended, by this implementing legislation, and any other relevant provision of Federal or State law, including the common law. This provision must be read in conjunction with the other provisions of the law that are specified. Paragraph (2) states that the provisions of the Berne Convention are not enforceable in any action brought pursuant to the provisions of the Convention itself.

Subsection (b) states that United States adherence to the Berne Convention, and the satisfaction of United States obligations thereto, does not expand or reduce certain rights of an author of a work. Those rights are set forth in Article 6bis of the Berne Convention, and are commonly known as the rights to "paternity" and "integri. ty.” In other words, the state of current law is sufficient to comply with Article 6bis and this implementing legislation will have no effect, one way or the other, on current law.

SECTION 5. DEFINITIONS Section 5 of the bill modifies chapter 1 of title 17, United States Code, in two ways.


First, the definition of “pictorial, graphic, and sculptural works” is changed by adding a reference to "architectural plans” in the list of protectible subject matter. Since the protection of architectural works is required by the Berne Convention, this provision merely buttresses the proposition that the United States already complies with Berne standards. Stated otherwise, under current law rightsholders of two-dimensional architectural plans or blueprints enjoy copyright protection in such works as “pictorial” works. Section 5 therefore certifies that such protection exists.

Second, section 101 of the Copyright Act is amended by inserting two new definitions: the “Berne Convention” and a “Berne Convention Work." The Borne Convention is defined as the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto, up to and including the revision done at Paris, France, in 1971. A work is a “Berne Convention work” in the following circumstances: (1) in the case of an unpublished work, one or more of the authors is a national of a state adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a state adhering to the Berne Convention on the date of first publication; (2) the work was first published in a state adhering to the Berne Convention, or was simultaneously published in a state adhering to the Berne Convention and in a foreign nation that does not adhere to the Berne Convention; (3) in the case of an audiovisual work if an author is a legal entity, that author has its headquarters in a state which adheres to the Berne Convention, or if an author is an individual, that author is domiciled, or has a habitual residence in a state adhering to the Berne Convention; and (4) in the case of a pictorial, graphic, or scuptural work embodied in a building or other structure if such work is incorporated in a building or other structure located in a state adhering to the Berne Convention.


Section 6 of the bill relates to the national origin of Berne Convention works. It amends section 104 of title 17 in two ways: protection for foreign works is explicitly extended to “Berne Convention works” and the proscription against self-execution is codified. This letter codification is fundamental to the entire question of implementing legislation and of adherence to the Convention. It should be absolutely clear that the provisions of the Berne Convention do not create a right or interest in a work eligible for protection under title 17 of the United States Code. Section 6, subsection (c), also provides that any rights or interests in a work eligible for protection under title 17, or under other Federal or State statutes or the common law, may not be claimed and shall not be expanded or reduced, by virtue of, or in reliance upon, the Berne Convention's provisions or the United States adherence thereto.

SECTION 7. PREEMPTION WITH RESPECT TO OTHER LAWS Section 7 adds a new subsection (e) to section 301 of title 17, United States Code, relating to Federal preemption with respect to other laws. The new subsection provides that the scope of Federal

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