27 tion; and, it is, in all probability, the cheapest deterrent to infringement which a copyright holder may take. In new section 403, the Copyright Office is given the authority to promulgate regulations concerning how publishers of works consisting in whole or in part of uncopyrightable works of the United States Government shall apprise the public of those portions of the work that are in the public domain and therefore freely copiable. The bill modifies section 404 to clarify the requirements necessary to invoke the "evidentiary weight of notice" provisions of new sections 401(d) and 402(d), as applicable. Sections 405 and 406 of current law, which deal with omissions of and errors in the copyright notice, are amended so as to apply only to works published in the United States-with or without a copyright notice-before the effective date of the Act. Works created before the effective date of the Act but only first published after the effective date are subject to the voluntary provisions of the Act and not the mandatory provisions of prior law. This should have little functional effect, since virtually all publications in which the Library is interested now bear a copyright notice, and it seems likely that the Library's compliance activities will remain largely unchanged. SECTION 10. DEPOSIT OF COPIES ON PHONORECORDS FOR LIBRARY OF CONGRESS Section 10 of the bill contains a technical amendment to section 407(a) of current law, eliminating the notice requirement. SECTION 11. COPYRIGHT REGISTRATION Section 11 amends section 408 of current law, concerning registration, to delete reference to sectin 405(a), since "cure" of a publication without notice is no longer necessary, and to further delete subparagraph (c)(2)(A), since the "collective works notice" section has been eliminated. SECTION 12. COPYRIGHT ROYALTY TRIBUNAL Section 12 of the bill amends chapter 8 of title 17, United States Code, in two ways. Subsection (a) provides that if the Copyright Royalty Tribunal ever has to adjust jukebox compulsory license fees, it shall give great weight both to its "final" rates prior to implementation of new section 116 and to the rates contained in any new consensual licenses that are negotiated. Subsection (b) clarifies that if negotiations break down between the performing rights societies and the jukebox operators, and a petition for adjustments of rates is filed with the Copyright Royalty Tribunal, the Tribunal may meet immediately. In this circumstance, the Tribunal would then meet each subsequent tenth calendar year from its last meeting to determine royalty rates. SECTION 13. WORKS IN THE PUBLIC DOMAIN Section 13 clarifies that title 17, United States Code, as amended by this Act, does not provide copyright protection for any work that is in the public domain in the United States. 28 SECTION 14. EFFECTIVE DATE; EFFECT ON PENDING CASES Section 14 provides that this Act, and any amendments made thereby, shall take effect on the day after the date on which the Berne Convention enters into force with respect to the United States. Section 14 also specifies that any cause of action arising under title 17, United States Code, before the effective date of the Act shall be governed by the provisions of such title as in effect when the cause of action arose. In other words, the Act is not retroactive. V. IMPACT ON EXISTING LAW Due to the significance of the Berne Convention Implementation Act of 1988, it is appropriate to delve further into its impact on current copyright law. The preceding sectional analysis, of course, discusses the legislation under the rubric of each section. The following explanation presents a more in-depth analysis of the most important subjects implicated by the proposed legislation. Discussion is divided into seven subheadings: (1) self-execution; (2) the "moral rights" of authors; (3) formalities; (4) the jukebox compulsory license; (5) architectural works; (6) retroactivity and the public domain; and (7) the effective date of the Act. A. THE BERNE CONVENTION IS NOT SELF-EXECUTING IN THE UNITED STATES Pursuant to the United States Constitution, treaties are the supreme law of the land.29 As such, they supersede prior laws with which they conflict. Some treaties are self-executing: once ratified, they take effect without additional governmental action. Other treaties are not self-executing, and they take effect only after additional governmental action, such as implementing legislation passed by the Congress and signed by the President.30 While the failure to enact necessary implementing legislation may place a country in violation of its international obligations,31 the terms of the treaty itself generally do not supersede existing laws that conflict. 32 Whether the Berne Convention is to be self-executing in any member country depends on the constitution and laws of that country. While its text and negotiating history are relevant to whether the parties intended any self-executing effect, it is ultimately the Constitution and laws of the United States that will determine the answer to this question in the United States. The question has critical implications for the effect of the Convention generally, and in particular for the Committee's decision regarding its obligations under Article 6bis of the Convention. See discussion below. 29 U.S. CONST. art. VI, cl. 2. 30 RESTATEMENt (Revised) Of Foreign Relations Law Of The United States, Tent. Draft No. 6 (April 12, 1985) (hereinafter cited as RESTAtement (RevisED)) § 131(3). 31 RESTATEMENT (Revised) Vol. 1, Introductory Note at 50. 32 RESTATEMENT (Revised) § 135, Comment e. 29 1. Provisions of the Berne Convention Article 36 of the Convention, entitled "Application of the Convention by the Provisions of Domestic Law," provides that: (1) Any country party to this Convention undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention. (2) It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its domestic law to give effect to the provisions of this Convention. 33 According to the Guide to the Berne Convention, published by the World Intellectual Property Organization, the measures necessary to ensure the Convention's application will depend on "the constitution of the country in question: in some it becomes part of the law of the land; in others, parliament must pass laws to give effect to the Convention's obligations." 34 The Guide's analysis of Article 36 states that during the Paris revision, it was pointed out . . . that, in countries according to the By implication, then, the Guide recognizes that there are countries where the Convention is not self-executing, and that alternatives to self-execution are appropriate. The Guide's analysis of Article 2, paragraph (6) of the Convention supports this conclusion. It notes first that in some countries after ratification, "the Convention becomes part of that country's law: if therefore its wording is apt to confer rights directly, individuals may bring action based on the Convention itself to enforce them." 36 It then notes that other countries, notably those following the British legal tradi- In sum, the provisions of the Convention, and the W.I.P.O. Guide interpreting them, do not determine whether the Convention is self-executing in countries such as the United States. They do, however, make clear that the Convention standing along does not re 33 Berne Convention Art. 36. 34 W.I.P.O. Guide to the Berne Convention for the Protection of Literary Works (Paris Act 1971) [hereinafter cited as W.I.P.O. Guide] § 36.2 at 141. See statements of Meyer Gabay, Commissioner of Civil Service, Israel; and Margaret Möller, Ministerial Counsellor, Ministry of Justice, Federal Republic of Germany, Roundtable Discussions, supra note 10, November 25, 1987. 35 W.I.P.O. Guide, supra note 34, § 36.5 at 141. 36 Id. § 2.20 at 21. 37 Id. §2.21 at 21. 30 quire self-execution, and that the answer to the question lies in the constitutions and laws of the member countries, as they choose to apply them. 2. The United States Constitution and Laws "In Western parliamentary systems, generally, treaties are only international obligations, without effect as domestic law; it is for the parliament to translate them into law, or to enact any domestic legislation necessary to carry out the obligations." 38 The United States Constitution not only provides that treaties "shall be the supreme Law of the Land. "39 but it also grants the President the power to make treaties, with the advice and consent of the Senate, and so long as two-thirds of the Senate concur.40 Standing alone, these Constitutional provisions do not determine whether the Berne Convention is necessarily self-executing in the United States. In any given instance, the issue is generally resolved by an examination of three factors: first, the intent of the parties to the treaty, drawn from the wording of the treaty and the surrounding circumstances; 41 second, whether self-execution would violate other constitutional provisions; 42 and third, whether the treaty's terms require specific action to be taken.43 The first factor, relating to the intent of the parties, is not determinative of whether the Berne Convention is self-executing in the United States. As noted above, Berne's language leaves the decision to the member countries; they may permit self-execution or disallow it. However, the view of the United States Department of State "carr[ies] substantial weight in these matters. . . ",44 as does that of the President.45 The State Department's representative, Under Secretary W. Allen Wallis, testified before the Subcommittee that in general, intellectual property treaties should not be considered self-executing in the United States. He noted the Ad Hoc Working Group's Final Report and concluded that in particular, the Berne Convention is not. He buttressed his conclusion with the letter of "the President . . . to the Senate seeking advice and consent to accession [,which] stated that 'implementation of the Berne Convention will require legislation" [emphasis added]." 46 Under Secretary Wallis opined that "In the face of such clear intent, it is difficult to imagine that any legal action instituted on the grounds that Berne is self-executing would be successful." 47 38 L. HENKIN, FOREIGN AFFAIRS and the ConSTITUTION at 156 (1972); Restatement (Revised) § 131, Comment h. 39 U.S. CONST. art. VI, cl. 2. 40 U.S. CONST. art. II, section 2, cl. 2. 41 RESTATEMENt (Revised) § 131(4); U.S. v. Postal, 589 F.2d 862, 877 (5th Cir. 1979); 1 D. O'CONNELL, INTERNATIONAL Law 271 (1965); memorandum by Assistant Legal Adviser for Economic Affairs Metzger (1951), cited in 14 M. WHITEMAan, Digest of InTERNATIONAL Law 302, 309 (1970). 42 RESTATEMEnt (Revised) § 131(4). 43 Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829). **U.S. v. Postal, 589 F.2d 862, 883 (5th Cir. 1979). 45 RESTATEMENt (Revised) § 131, Comment h; Ad Hoc Working Group Final Report at 601. 4 Statement of W. Allen Wallis, Under Secretary for Economic Affairs, United States Department of State, House Hearings, supra note 9, July 23, 1987. 47 Id. 31 Interpretations of the treaty by Congress 48 are also relevant in this context.49 All of the bills seeking to implement the Berne Convention, including H.R. 4262, state in no uncertain terms that the Convention is not self-executing.50 Pursuant to the second factor, if the treaty requires action in an area constitutionally reserved exclusively to the Congress, it is not self-executing. 51 For example, if the treaty requires money to be appropriated, it will not be considered self-executing, since under our Constitution only the Congress may appropriate money. Treaties requiring that individuals be criminally penalized are also not deemed self-executing.53 The obligations imposed by the Berne Convention fit completely into neither of these categories. However, an argument may be made that each of these categories weighs against a finding that Berne is self-executing in the United States. First, Article I, Section 8, clause 8 of the Constitution accords to both Houses of Congress the national power to create or withhold copyright protection. Second, the implementing legislation would extend criminal penalties to willful commercial infringement of works previously ineligible for protection in the United States. The third factor, relating to whether the treaty's terms require specific action to be taken, was first set forth in the seminal case of Foster v. Neilson, 54 in which the United States Supreme Court examined the Florida cession treaty with Spain.55 The Court set forth the distinction between self-executing and non-self-executing treaties. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contractwhen either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court. 56 The Ad Hoc Working Group's Final Report concluded that "where a treaty 'expressly provide[s] for legislative action' it is not self-executing.' "57 Comparing the language in Berne's Article 36 48 RESTATEMENT (REVISED) § 131, Comment h. 49 Id.; Ad Hoc Working Group Final Report, supra note 5, at 601. 50 See, e.g., 133 Cong. Rec. H1293-6 (daily ed. March 16, 1987) (statement of Representative Kastenmeier). See also H.R. 2962 (Representative Moorhead); S. 1301 (Senator Leahy) and S. 1971 (Senator Hatch). 51 RESTATEMENT (REVISED) § 131, Comment i. See generally, LIBRARY OF CONGRESS, STUDY PREpared for the Senate Comm. on Foreign Relations, TREATIES & OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, 98th Cong., 2d Sess. (S. Print 98-205) (1984). 52 Id.; U.S. v. Postal, 589 F.2d 862, 877 (5th Cir. 1979). 53 RESTATEMENT (REVISED) § 131, Comment i.; U.S. v. Postal, 589 F.2d 862, 877 (5th Cir. 1979) Hopson v. Kreps, 622 F.2d 1375, 1381 (9th Cir. 1975). 54 27 U.S. (2 Pet.) 253 (1829). 55 The Court held the treaty to be non-self-executing, but in United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833), the Court, based on additional information, found that it was self-executing. 56 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). 57 Ad Hoc Working Group Final Report, supra note 5, at 600, quoting from U.S. v. Postal, 589 F.2d 862, 877 (5th Cir. 1979). |