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THE INTERNATIONAL PROTECTION
(English translation) Ces coefficients seront multipliés These coefficients will be multipar le nombre des pays de chaque plied by the number of States of classe, et la somme des produits each class, and the total product ainsi obtenus fournira le nombre thus obtained will give the number d'unités par lequel la dépense totale of units by which the total expense doit être divisée. Le quotient don- is to be divided. The quotient will nera le montant de l'unité de dé- give the amount of the unity of pense.
expense. Chaque pays déclarera, au mo- Each State will declare, at the ment de son accession, dans la- time of its accession, in which of quelle des susdites classes il de- the said classes it desires to be mande à être rangé.
placed. L'Administration suisse préparera The Swiss Administration will le budget du Bureau et en surveil- prepare the budget of the Bureau, lera les dépenses, fera les avances superintend its expenditure, make nécessaires et établira le compte the necessary advances, and draw annuel qui sera communiqué à up the annual account, which shall toutes les autres Administrations. be communicated to all the other
Administrations. 6. La prochaine Conférence aura 6. The next Conference shall be lieu à Paris, dans le délai de quatre held at Paris between four and six à six ans à partir de l'entrée en years from the date of the coming vigueur de la Convention.
into force of the Convention. Le Gouvernement français en fixera la date dans ces limites, après avoir pris l'avis du Bureau international.
7. Il est convenu que, pour 7. It is agreed that, as regards l'échange des ratifications prévu à the exchange of ratifications conl'article 21, chaque Partie contrac- templated in Article XXI, each tante remettra un seul instrument, contracting party shall give a sinqui sera déposé, avec ceux des autres gle instrument, which shall be depays, aux archives du Gouverne- posited, with those of the other ment de la Confédération Suisse. States, in the Government archives Chaque Partie recevra en retour of the Swiss Confederation. Each un exemplaire du procès-verbal party shall receive in exchange a d'échange des ratifications, signé copy of the procès-verbal of the par les Plénipotentiaires qui y exchange of ratifications, signed by auront pris part.
the plenipotentiaries present. Le présent Protocole de clôture, The present Final Protocol, which qui sera ratifié en même temps que shall be ratified with the Convenla Convention conclue à la date de tion concluded this day, shall be ce jour, sera considéré comme considered as forming an integral faisant partie intégrante de cette part of the said Convention, and Convention, et aura même force, shall have the same force, effect, valeur et durée.
ROUNDTABLE DISCUSSIONS ON UNITED STATES
ADHERENCE TO THE BERNE CONVENTION
NOVEMBER 25, 1987
HOUSE OF REPRESENTATIVES,
Geneva, Switzerland. The members met at 10 a.m. at the World Intellectual Property Organization, Geneva, Switzerland, Hon. Robert W. Kastenmeier (chairman of the delegation) presiding.
Present: Representatives Kastenmeier, Fish, Moorhead, Hyde and Berman.
Staff present: Michael J. Remington, chief counsel; Virginia Sloan, counsel; and Thomas E. Mooney, associate counsel.
Also present: Ralph Oman, Register of Copyrights; Lewis Flacks, Policy Planning Advisor, Copyright Office; Arthur E. White, Director of Congressional Affairs, U.S. Patent and Trademark Office; Colonel Frank Moran, United States Air Force; and TSgt Bryan Williams, United States Air Force.
Mr. KASTENMEIER. Good morning, Dr. Bogsch, Mr. Director General. We are delighted to be convened here this morning. Let the records show it's a gorgeous sunny day in Geneva, and we are most indebted to you Sir, as our host, and to the World Intellectual Property Organization (WIPO), for hosting this, for us, unique and unprecedented inquiry into questions involving United States adherence to the Berne Convention.
I would like at the outset to ask, do any of my colleagues have a statement they would like to make? The gentleman from California, Mr. Moorhead.
Mr. MOORHEAD. Bob, I would like to join you in welcoming all of our friends here that have come from so many different countries. We've really had a wonderful evening with you last night and we looked forward to this meeting today and getting a better insight on how you feel our adherence to the Berne Convention would affect us and would affect you and the entire copyright world. I know I come from an area where they make motion pictures and lots of the records and much of the computer software. I'm not from Silicon Valley, but the Los Angeles area is deeply involved in that area, so this is a very important subject for me, and I know it is for many of us in the United States. I know that the Chairman and myself feel very strongly that the United States should be more actively involved in the World Intellectual Property Organization and adherence to Berne if we are to participate as we should in the enforcement of copyright laws, and in our involvement with
other people around the world that are concerned with the same things that we are.
Dr. BOGSCH. Mr. Chairman Kastenmeier, Congressmen Moorhead, Berman, Fish and Hyde. We are extremely honored that you have decided to include WIPO in your business trip in Europe, in order to explore the situation as far as the Berne Convention is concerned so as to enable you to make a fully considered decision on the legislation that would enable the United States of America to adhere to the Berne Convention. As you have said, Sir, this is a quite unique method, the first in history. I think we can be very happy and satisfied that you have resorted to this unique method of enquiry. It is certainly a very practical one and should yield the desired results.
We have invited, on your behalf, and according to your selection, the ladies and gentlemen who are the experts here today. Although you may have met them briefly yesterday during our dinner, if you allow me, I shall just enumerate them in alphabetical order, indicating their titles and their nationality.
Mr. Shahid Alikhan is Director of the Developing countries (Copyright) Division of the World Intellectual Property Organization (WIPO), and he is an Indian national.
Mr. György Boytha is the Director General of the Hungarian Bureau for the Protection of Author's Rights in Budapest, and he is a Hungarian national.
Mr. Jean-Louis Comte is the Director General of the Swiss Federal Intellectual Property Office in Berne, and he is accompanied by his Deputy, Mr. Roland Grossenbacher.
Mrs. Milagros Del Corral is the Secretary General of the Spanish Federation of Publishers Associations in Madrid and she is a Spanish national.
Professor Dr. Robert Dittrich is Ministerialrat in the Federal Ministry of Justice in Vienna, Austria, and he is an Austrian national.
Mr. Mayer Gabay is Commissioner of the Civil Service of the Government of Israel in the Ministry of Finance, and he is an Israeli national.
Professor Gunnar Karnell is Head of the Law Department of the Stockholm School of Economics, and he is a Swedish national.
Mr. Jukka Liedes is Special Adviser on Copyright Affairs in the Ministry of Education in Helsinki and he is a Finnish national.
Mrs. Margret Möller is Ministerialrätin (Ministerial Counsellor) in the Federal Ministry of Justice in Bonn and she is a national of the Federal Republic of Germany.
Mr. Werner Rumphorst is Director of the Legal Affairs Department of the European Broadcasting Union, a non-governmental international organization with its headquarters in Geneva, Switzerland.
Mr. Victor Tarnofsky is the Assistant Comptroller of the Industrial Property and Copyright Department in London, United Kingdom, and he is a United Kingdom national.
Professor Dr. Dirk Verkade is Professor of Law in the Catholic University in Nijmegen in the Netherlands, and he is a national of the Netherlands.
Mr. Jean-Alexis Ziegler is Secretary General of the International Confederation of Societies of Authors and Composers (CISAC), an international non-governmental organization with headquarters in Paris, France.
You have decided, Sir, that you would have four panels altogether, and I think that your wishes have been met as far as the composition of the four panels is concerned. Thank you Sir.
Mr. KASTENMEIER. Thank you, Dr. Bogsch. Just a few words before we commence. It had been our hope that the proceedings would be relatively informal, that we would try to aggregate major issues in four panels, two to be presented this morning and two tomorrow, and that several persons would be asked among you to present a discussion in each of the four subject areas. I have to make the request that the prepared remarks you might make, if indeed they go on for a period of time in excess of perhaps ten minutes, that you might summarize your remarks. It appears to be necessary in order that we might hear all panelists, and that we may have an interchange of questions and coments on the subject, and directed to each of the panelists. In any event, we would have the benefit of receiving your remarks in full, which will comprise a record that we would have to study and perhaps even communicate with you further in terms of follow-up. Your remarks may raise questions that we may not fully understand.
PANEL 1.—THE PLACE OF THE BERNE CONVENTION IN
INTERNATIONAL LAW Our first panel today, and may I say that, for the purpose of actually getting through the proceeding, we have allocated just over an hour for each panel, which is not adequate, we understand, but nonetheless that is the way we have planned. We would hope to conclude both panels by 12:30 p.m. The first panel will discuss, in the general sense, the place of the Berne Convention in international law. There are a number of questions which this panel may raise: the relationship of Union States to the Convention and the nature of the protection, as perhaps contrasted to Non-Urion States; the relationship between the Universal Copyright Convention and the Berne Convention; and perhaps any other matters, such as the relationship of Berne to any code or copyright standard that might be pursued by GATT. Also, whether the character of the Convention presumes a self-executing nature and whether or not the Union has been successful in responding to the needs of all its adherents, including developing countries, and to what extent perhaps the last revisions have been effective in that regard Doubtless other aspects will be discussed in the context of the Berne Convention in international law.
Our three consultants, to whom we are very indebted for their presence and their presentations this morning, will be in order Mayer Gabay of Israel, Shahid Alikhan of India, and György Boytha of Hungary. Therefore, I would like to open up at this point by inviting Mr. Gabay to make his presentation.
Mr. GABAY. Chairman Kastenmeier. I am indeed gratified to be here today. It's been exactly eight years since on a rather cold November evening in New York City, I addressed the United States Copyright Society on this specific issue, trying to propose (this was in November '79) that the United States should join the Berne Convention. I only hope that eight more years will not elapse before the US joins the Berne Convention.
Israel is in a very special position because it has aspects both of a developing and a developed country. On the one hand, in a number of important areas, especially technological areas, it has achieved some major achievements: yet, in other respects it is still largely an importer of copyright works, due to its position, and also due to the fact that its language is used only within the State of Israel. Israel is a member of both the Berne Convention and the Universal Copyright Convention. Israeli law affords protection through the British Copyright Act of 1911-this is interesting because some facets of the British law are applicable also to the United States, and that always was applied to Israel during the British mandate. This law has been amended many times, and at present a committee is working on a new law of copyright.
I have prepared a long statement, but since, as you have suggested, we should address the committee only within ten minutes, I would concentrate on two issues. One is the question of the selfexecution of Berne, and the other one is the relationship between Berne and the GATT.
On the first issue, the self-execution of Berne. Under Article 36 of the Paris Revision, also contained in the Stockholm Revision, Member States of Berne, at the time they become bound, must adopt the necessary measures to ensure the application of the Convention. There is no provision in Berne, however, express or implied, that requires the Convention to be self-executing. All that is necessary is that appropriate domestic legislation must be in effect at the material time in order to give efficacy to the provisions set out in the Convention. Israel, the United Kingdom, and most of the Commonwealth countries do not possess the means for a given treaty to take effect on a self-executory basis. There, domestic legislation, either existing or yet to be enacted, is required in order that a treaty or convention can have a legal effect and application.
We know that the United States does admit the self-execution of specific treaties, but not of others. Intellectual property treaties or conventions have never been self-executing in the United States. Accordingly, if and when the United States enters Berne, it's domestic copyright legislation must be able to give effect to the provisions of that Convention, but the Convention would not be self-executing if this is provided for by the Congress.
On Israel entering Berne, the essential basis for giving efficacy to the provisions in the Convention were already contained in the domestic legislation. The two facets that were introduced into the law comparatively recently were, respectively: moral rights and performing rights. The latter mentioned being set out in separate leg. islation. No problems of a fundamental nature were thus encountered as a result of the lack of such statutory provisions in the Israeli copyright legislation. And I would like to give you a specific example that came up before the Israeli Supreme Court dealing with moral rights.
In a decision from 1975, the Supreme Court dealt with the issue of the lack, at that time, of moral rights provisions in the Israeli