Fifth, Mr. Chairman, let me make mention of the preamble of the Tunis Model Law for Developing Countries, which was formulated by a committee of experts in February 1976 convened jointly by WIPO and UNESCO; 27 countries participated in that meeting and in the preamble it says clearly that the Model Law for developing countries has adopted the terminology of the Berne Convention for the reason that, "unlike the Universal Convention, which makes use of fairly general terms, the Berne Convention contains a number of detailed provisions which should be included in national laws." It is my very personal view that, as concerns the asserted higher or lower level of protection, the differences in the two Conventions are of no consequence or concern to the developing countries and this is why we find that a great majority of developing countries particularly the larger ones, are members of the Berne Convention. It is just this: the Berne Convention has a more detailed codification. This is how I feel, and this is how many developing countries see it for the moment. Also all the developing countries' recent legislation has been based on the provisions of Berne as I have mentioned to you.

Sixth, U.S. adherence to Berne would provide a more solid basis for an appropriate international copyright system. It would be welcomed, can assure you, by 44 developing countries members of Berne, including my own country. This has in fact been stated by the specialists from India who attended the first meeting, in 1978, of a group of consultants, which was then discussing in WIPO the compatibility of Berne and the new U.S. law of 1976.

Seventh, such adherence would considerably enhance global protection of copyright and would strengthen anti-piracy measures, already being taken by a number of developing countries on their own, and will considerably aid and assist these measures to ensure an effective global respect for copyright. And we look forward to your country, also, putting its might to this effort.

Eighth, Mr. Chairman, is the final point. In the last ten years, as I said, WIPO's development cooperation programs have covered for the purpose of creating an awareness of copyright, 65 meetings of an informational kind, which have been attended by 3,000 participants from over 100 developing countries. We have held these meetings, hosted by various countries both developed and developing: Australia, Austria, Federal Republic of Germany, France, Italy, Sweden, Switzerland, United Kingdom, Hungary, Algeria, India, Senegal, to name only a few. The United States could also, with its huge cultural industry, its enormous production of copyrighted material, and its related infrastructure, help in this direction. Perhaps it has not done so before because it has not adhered to the Berne Convention. We look forward to, not only your adherence but also your help in the organization of these information dissemination meetings. I can assure you that, having just returned from such a meeting in Asia and the Pacific, and other meetings of developing countries, they all ask on camera when will the United States adhere to the Berne Convention? Thank you, Mr. Chairman. Mr. KASTENMEIER. Thank you very much, Mr. Alikhan, for that presentation. The Chair would now like to call on Mr. György Boytha.

Mr. BOYTHA. Thank you, Mr. Chairman. Mr. Chairman, Mr. Director General, distinguished Congressmen, I am grateful for the opportunity to participate in this exchange of views on questions relating to the United States adherence to the Berne Convention

My country, Hungary, is a small country of Europe. We adhered to the Berne Convention in 1922, and now, after the lapse of 65 years, Hungary, along with other member states of the Berne Union, is looking forward with great expectation and interest to the United States participating in the more than 100 years of interplay between the development of the Berne Convention and the development of national legislations in countries which adhere to that Convention.

During these 65 years Hungary experienced not only an increased protection of Hungarian works abroad; but, equally important, we can testify that the increased protection of foreign works also furthered the competitiveness of Hungarian works in the Hungarian market at home. An easy access to foreign works is harmful to national creativity, because users are inclined to use foreign works not protected or less protected than works of national authors in that country.

Based on the description of various subjects you so kindly submitted to us, I have prepared, of course, the content of a statement which I will not present now in its entire length. I would neverthe less address certain points preferred by you, Sir, such as increased protection under Berne, the relationship between Berne and other treaties, then questions relating to the direct or indirect operation of Berne. In this context I would be prepared to say a few words also about some special problems, such as the scope of national treatment which might be of interest with regard to joining Berne, and the so-called rectroactivity problem as well.

As to the increased protection under Berne, as we experienced it, I think it's not necessary to enumerate again all that has been mentioned in the various hearings in the House and Senate. I would nevertheless summarize or highlight the following points.

There are several particular rights articulated in the Berne Convention which are not even mentioned in the Universal Copyright Convention. Such rights are first of all the public communication rights-rights relating to the public communication of broadcasts, performances, recitations, cinematographic works, etc.; and it is of primordial interest now to have these rights protected all over the world with regard to international acts of using works.

Then, I would mention the fact that, whereas, under the UCC limitations are admitted without any specification or conditions, under the Berne Convention limitations can be imposed on authors rights only within certain limits clearly specified by the Berne Union, such as the respect of the integrity of the work claim to remuneration and even further conditions, for instance, regarding mechanical reproductions rights in Article 13 of the Berne Convention.

Thirdly, I wish to highlight the usefulness of prohibiting all formalities as a condition of protection, because an inadvertent ommission of some formality might deprive the owner of the copyright of enforcing his right in other countries which did not abandon such formalities.

Then I wish also to emphasize one other important feature of the Berne Convention, that it renders it possible to protect after the effective date of that convention, preexisting works against new acts of using them, which is not the case under the UCC.

As to other aspects of increased protection, I wish to highlight the importance of enlarging the number of countries to which international protection can be extended by adhering to the Berne Union. Mr. Alikhan already mentioned that there are countries now only party to the Berne Convention. These countries are altogether 24 so far; 17 of them adhered to the Paris version of that Convention; this means that the majority of those countries which are party only to the Berne Convention and not at the same time also to the UCC, have accepted the highest given level of international protection. That means that joining the Berne Convention would enable the United States to require the highest level of protection in a number of countries to which the United States had so far no copyright relations at all, or unclear relations only, as stated by the Copyright Office of the United States. Mainly African countries are involved and, among them, very important ones as Zaire, Egypt, but also other such countries should be considered, in particular, Turkey. My country has well-established mutual relations with Turkey, and that means that Hungarian works are protected in Turkey effectively; we can license publishing and performance of Hungarian works there, and of course we also have to protect works of Turkish authors. We are now establishing mutual relationships with several African authors' societies in Egypt, Zaire, Senegal, Mali.

We cooperated with WIPO in training courses and so we can contribute to the training of officers from African countries linked to Hungary in the field of copyright only by the Berne Convention; we can participate in training them and also further the establishment of international protection of authors' rights in their countries.

Now, as to other types of conventions and, in particular, other copyright conventions, what questions arise with regard to adhering to Berne? Berne, as you all know, distinguished Congressmen, has an absolute priority in being applied to the protection of authors' works vis-à-vis other conventions, including the Universal Copyright Convention. There is a "safeguard clause" in that convention which has not applied since 1971 to developing countries, but is still, in force as regards the so-called developed countries, providing that, even if a country dissolves its ties to Berne, its works cannot enjoy the protection under the UCC. That means that Berne applies in the relation of more than 50 countries which are parties to both major copyright conventions, and governs the relationships of the United States to all these countries once it adheres to that convention. Hungary is party to both conventions-to Berne and the UCC-but in actual fact UCC applies only in relation of Hungary to the United States, to the Soviet Union and 22 other countries which are bound so far only by the UCC. Thus, in respect to the majority of UCC countries, it is the Berne Convention that applies and, by virtue of several provisions contained in the Universal Copyright Convention even as regards the interAmerican treaties and other bi-lateral agreements, it will be the

Berne Union that applies to the international copyright relations of the United States provided, of course, that those countries which are parties to other conventions at the same time also adhere to the Berne Convention. By that I wish to stress that the highest level so far existing on earth in the field of copyright protection would apply also in relations of the United States to other countries which are members to other copyright conventions or treaties as well.

As regards GATT, I simply wish to stress one idea. We have to observe a certain division of competences. GATT may helpfully serve in the enforcement of protected authors' rights, but the development of the contents of such rights and limitations that can be imposed on the exercises of such rights remain in the domain of the Berne Union. If we tried to develop GATT into a copyright agreement, that would not only increase the number of multilateral international conventions aimed at the protection of authors' rights by developing such rights, which would of course in itself. affect the effectiveness of all these conventions; but I also think that there is not much hope that many countries where protection is sought, would adhere to such a new agreement because one hardly can expect that countries where piracy is developing would adhere to a convention which provides even stronger standards than achieved under the Berne Convention. And even if we presume a certain number of adherence to a treaty which, parallel to the Berne Convention, establishes rights at least at the same level of protection than the Berne Convention, that would take time and we have to act immediately. So as I see it, the Berne Union should be strengthened also by the fact that we did not endeavour to make a third agreement to the same goal, by furthering its implementation through a strong influence on national legislation and by asking GATT to be at our help in the field of enforcing those rights. Copyright protection basically has three important aspects: one is the enjoyment of the rights, that means development of their contents; second the exercise of those rights, which means that national legislation should provide for guarantees in these respects, too, and finally enforcement of protected rights which I think is a field where GATT can be helpful. These are perhaps the most important aspects here.

The last issue which I would address now very shortly is the selfexecuting or non-self-executing nature of the Berne Convention. I completely agree with Mr. Gabay that nothing has been agreed upon in the Berne Convention which would make its self-executing compulsory. It even cannot be self-executing in several respects because many of its provisions say that it has been left to the States to regulate some aspects of the Convention.

But, on the other hand, I must also emphasize that we cannot exclude the role of its self-executing capacity, the self-executing possibilities in the implementation of the Berne Convention, because its basic rule says that the Convention grants all those rights which are granted in the member States to nationals (this is a clear reference to national law) and, in addition, also those rights which are granted specifically by that convention. Now, the trend has been to strengthen national laws, and the original idea was

that national laws should be consistent with the Berne Convention, not eliciting its self-executory effect.

At the Paris Revision Conference it was considered that several countries did not have laws fully consistent with the Berne Convention, and then on an Austrian proposal, it was written in the report that those provisions which are susceptible of direct application, not all provisions, but only those which are susceptible of it should be regarded as self-executing in cases where appropriate. Not the whole convention, and only where the constitution so allows. This has two advangtages: self-execution can bridge gaps between national laws and the minimum protection as secured by the Berne Convention and if a constitution allows for it, it can easily be put in force merely by enacting the Convention itself. In my country various revised acts of Berne were all enacted as national laws; so, everybody can refer directly to the Convention because it became a part of the body of national laws. But in other countries Berne functions well also indirectly. For instance, in Great Britain, where it is applied by means of a statutory instrument, the international order in the field of copyright, simply extends the application of national laws to works originating in Berne countries. So I have the feeling that, in this respect, a consistent law, may fully implement the Berne Convention, which should be self-executing only in those countries where national law is not fully consistent with it and the constitution allows for this.

The other questions, Mr. Chairman, I would not address now, but please remember that I am ready to elaborate also on further aspects such as the scope of national treatment and the so-called problem of retroactivity, which is an important issue. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you very much, Mr. Boytha. That concludes the three presentations and the floor is now open to questions. The chair will at least pose a question or comment and will look for others to raise their hands and add either comments or questions.

I gather you have concluded that Berne is not self-executing, except in Mr. Boytha's case he suggests a couple of exceptions, cases where it could have the effect. Is that the prevailing view? Are there dissents to the notion that essentially Berne is not selfexecuting? Mr. Gabay?

Mr. GABAY. As I have indicated before, I believe, and this has been said also by Mr. Boytha, that it depends on the national legislation. That is to say, if the constitutional law of a particular country does recognize or does accept, the Berne Convention, or any other Convention, as self-executing, then it will be self-executing. But if, like the case of Israel, or the United Kingdom, or most Commonwealth countries, where this is not the case, under our system it is very clear that no international treaty, including the Berne Convention, is self-executing. So it would depend entirely on the form of adherence to the Berne by the United States, whether it would or would not be self-executing. We know that, for instance, in the field of trade most United States international trade treaties are not self-executing, at least the one that I mentioned with Israel was not self-executing. And I think that the same would apply to