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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 de velopment 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 be cause 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, be cause 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
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the Berne Convention, and it would entirely depend on the form that the United States would accept in that connection. Thank you.
Mr. KASTENMEIER. Thank you, Mr. Gabay. Mrs. Möller, you have the floor.
Mrs. MÖLLER. Thank you. In fact, part of my subject, moral rights, involved the question of whether Article 6bis is self-executing or not. Let me take the floor now because we are discussing the question at this moment.
If a country brings its legislation in line with the Berne Convention before adherence, self-execution or not is a mere theoretical question because then authors get the rights which are granted in the Berne Convention. But, what happens if a given country has no legislation, or no jurisdiction which is in line with Article 6bis.
I think, if a country adheres to the Berne Convention, it has to secure, in some way or other, the rights incorporated in Berne, and if its doesn't do so then my country has the view that the minimum rights-amongst them Article 6bis, subparagraph 1-are selfexecuting, because otherwise, the country concerned would be either in breach of contract or the author would not have the rights incorporated in the Berne Convention. What also should be reflected is the fact that the Berne Convention is not drafted to tell countries how they shall shape their own national law, but it's merely a convention where several countries came together a hundred years ago to secure for their national authors protection across the borders in other countries.
They agree on two principles:
One, to grant foreign authors from Berne member countries the same rights they granted their own national authors and
Two, to grant those foreign authors in any case some minimal rights laid down in the B.C. even if they did not grant these rights to their national authors.
Thus it has remained up to now.
Let us take the example of the United States. If you adhere to the Berne Convention all your contractural obligation is to grant foreign authors the minimum rights in the Berne Convention, not more. For your own authors you need not alter your own law one iota. This would of course mean different treatment for national and foreign authors if your national law does not grant rights which are granted by the Berne Convention. Whether that would be feasible politically, that's another question. In my country we could not do it for constitutional reasons for constitutional reasons we must treat our own authors as well as foreign authors. But if you say your copyright serves your national interests within your country best, and you wish to remain with your law for your national authors you can do so. But for foreign authors from Berne countries you will have to apply the minimal rights of the Berne Convention.
Thank you, Mr. Chairman.
Dr. DITTRICH. I share totally the view expressed by Mr. Gabay. If he understands the word self-executing in the sense that a person can base a claim before a court immediately, on the provisions of the Convention, then I think it is up to national legislation to decide whether or not a Convention in general can be self-execut
ing. And normally such provisions are contained in the Constitution.
I agree with the analysis of Madame Möller, which is based on the present law of the Federal Republic of Germany because this interpretation applies for my own country based on the Austrian Constitution. And I think the bridge between the ideas of Mr. Gabay and Mr. Boytha is the following: all the conventions contain provisions saying, to give an example, "it shall be a matter for legislation of the countries of the Union to determine", and so on ***. I am quoting from Article 11bis, para 2. Such provisions cannot be self-executing in this sense because they allow only that the national legislator provides something which is not mentioned in the Convention.
Mr. RUMPHORST. Thank you, Chairman. Indeed I submit that it is entirely a matter for the national legislature to decide how to implement an international convention. Now I believe that in the US you do accept the notion of self-executing conventions. In other words, you will probably have to look at each convention to know whether a particular convention or particular part thereof is, under your constitutional law, self-executing or not. And there I would humbly submit that you look at Article 5, paragraph 1, which says that the authors enjoy the rights granted by national legislation as well as the rights granted, or specially granted by this Convention. I would personally submit that this points into the direction of self-executing to the extent that national legislation lags behind the substantive rights granted under the Berne Convention. But, as I said at the beginning, it is entirely up to the national legislator to see whether, in conformity with constitution law in the country concerned, it is self-executing or not. Thank you.
Mr. KASTENMEIER. Thank you Mr. Rumphorst. Mr. Tarnofsky. Mr. TARNOFSKY. Thank you Mr. Chairman.
My government takes the position that the Berne Convention is not self-executing in any of its aspects. Thank you.
Mr. KASTENMEIER. Thank you. Dr. Verkade?
Professor VERKADE. Thank you, Mr. Chairman. Well, I also would like to express my agreement with what Mr. Gabay and the previous speakers said. In my country, like in Germany, I believe the Berne Convention is self-executing. But that is not because the Berne Convention so prescribes, it is because our Constitution prescribes so; and, in my opinion, as far as I know from international law, every country can decide by its own rules, its own constitution, whether there will be self-execution or not. Thank you, Mr. Chairman.
Mr. KASTENMEIER. Thank you.
The Chair would now like to recognize others to present questions. Before I do, let me summarize another area that I think, if it is agreed to, probably does not require further comment. I take it from the three presenters that, in terms of speaking about levels of protection, it is generally agreed that Berne offers slightly higher levels of protection than the UCC, being somewhat more explicit in certain areas, and that what is thought might be followed by the GATT, potentially, might even be a higher level than Berne and would pose certain problems. But as to lower or higher levels within Berne itself, I think Mr. Alikhan suggested that there are none, that this is essentially a matter of codification, and that explicitly Berne does not in that respect discriminate. I think that is what I heard him say.
Mr. Gabay. Mr. Chairman. I don't agree with that proposition because I think that the Berne Convention, in many respects, first provides a much more detailed codification of the rights of the author, unlike the Universal Copyright Convention, and, in addition, there are a number of areas where it provides a higher protection. Now, for instance, take the question of duration. The United States has adjusted, in its 1976 Copyright Law, its duration of copyright to the provisions of Berne. But before that there was a major difference because Berne provided protection for a period of 50 years following the death of the author, while the UCC has a shorter period, and also allowed for much shorter periods under the laws of different countries like the United States, as it was before the 1976 provisions.
There is, as mentioned by Mr. Boytha, the right of reproduction which I think is much more profound in the Berne Convention. There are quite a number of areas, the question of broadcasting, adaptation, cinematographic rights, that the Berne Convention does provide first more detailed and, we believe, a higher level of protection than the Universal Copyright Convention, which, as we all know, was adopted at the time in order to allow countries like the United States to have, in certain areas, a lower level of protection.
Now, this was once an argument between myself and the French representative, but I feel that the United States has a very high level of protection of copyright due to its recognition of the importance of copyright. But formally, at least, in terms of the Universal Copyright Convention and its law, I believe the law that was in effect before 1976, it did provide a lower level of formal protection as compared to some of the European countries, while, at the same time I think that in practice, it offered major protection.
So, I think that the analysis presented by Mr. Boytha in detail and by myself as a general point, is that the Berne Convention does provide a higher and a more detailed level of protection. And if we go back to the GATT, coming back to that question, and if the GATT helps us in enforcing those rights, and assuming that the GATT will not be able to provide an entirely new code on copyright, it would be important that the GATT refers to the higher level of protection provided by the Berne, rather than the lower level of protection provided by the UCC. Thank you.
Mr. KASTENMEIER. Thank you, Mr. Gabay. I accept that modification of my summary of your presentation. Are there other questions that the members or perhaps the Register of Copyrights (Mr. Oman), or Mr. Flacks, would like to ask? The gentleman from California, Mr. Moorhead.
Mr. MOORHEAD. During our hearings that we have had in the United States, probably the most controversial issue relating to the Berne Convention has been that of moral rights. We have strong