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.

Mr. KASTENMEIER. Dr. Dittrich.

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.

Thank you.

Mr. KASTENMEIER. Mr. Rumphorst, did you wish to be heard? 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. 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

groups of people on both sides of this issue, some that would like to see us go much further than we have, and others that don't want us to move an inch. I've heard a lot of different positions from the various countries as to what they think the minimum requirement of moral rights should be. Now Mr. Boytha, do you think that the United States now, in its copyright law, goes as far as we need to go in the enforcement of moral rights, in order to be a member of Berne?

Mr. KASTENMEIER. May I only interrupt to say that it was hoped that you might answer concisely. We do have the next panel devoted entirely to that question. As a matter of fact, it might be a good idea if you deferred that question for the next panel, since it will deal exclusively with moral rights.

Mr. MOORHEAD. All right.

Mr. KASTENMEIER. The gentleman from California, Mr. Berman. Mr. BERMAN. I have a question for those who say that Berne is not self-executing. If Berne does anything else other than simply give foreign works the protection that domestic authors have in the member countries, then how can it secure higher levels of protection, other than dealing with discrimination between domestic and foreign if it is not self-executing. I am a little confused but let me just add to it. If GATT successfully concludes some kind of agreement which has trade sanctions, as an enforcement mechanism for non-compliance, either with its own provisions or with the codification or the reference to Berne or the UCC (let us say Berne is the reference that GATT uses), why does not that make it self-enforcing in effect? If a country which does not go along with enforcing the Berne Convention is subject to GATT sanctions, is not that a form of self-execution?

Mr. KASTENMEIER. Dr. Bogsch.

Dr. BOGSCH. Mr. Chairman, I agree with those who said that the question of self-execution is a matter of internal, constitutional law, and nothing else. Nothing else. There are no exceptions, reservations, or other considerations. It is another question whether a country which adhered to what is, in its judgement, a non-self-executing treaty can violate the treaty or not. It can violate the treaty. It should not violate it. Nevertheless, a plaintiff in a private suit can base its claims on nothing other than the domestic law. In the United Kingdom, parties to a suit have to argue on the basis of the United Kingdom law and tomorrow, parties to a suit in the United States of America, will have to argue on the basis of the United States law. Of course, if the United States has a law which is not in conformity with its international obligations, then the United States, as such, becomes responsible. And in the Berne Convention and in other conventions, and perhaps tomorrow in the GATT, another State could say to the United States, "you have not respected your obligations; you should change your law." But parties to a suit could not simply refer to the Berne Convention and say it applies now between two litigants in the United States.

On the other question of the relations between the Universal Copyright Convention and the Berne Convention level of protection, all I think Mr. Alikhan meant when he said that the Berne Convention is more detailed, is that, de facto, the national laws in most of the UCC countries and the Berne countries are giving the

same treatment to foreigners because they have only one national law and if a country is a member of both Conventions, the same law will apply.

Mr. KASTENMEIER. Thank you. Mr. Gabay.

Mr. GABAY. I would like to respond to the question presented by Representative Berman. Notwithstanding the fact that I insist, as it has been also reiterated by the Director General and the others, that it would depend on national legislation whether the Berne Convention is self-executory or not. Neverthelesss, it does provide a direction, a guide, very important and very compelling, because it is up to the international community to call any particular country which adheres to a convention and that does not comply with it, and the guide is on a much higher level, on a much more detailed form than the Universal Copyright Convention. So while it is not self-executing, it does provide a basis for a much higher and much more detailed protection because this becomes the basis for national legislation in various countries. The Israeli legislation or the United Kingdom legislation or the legislation in most countries that are members of Berne is largely based on the Berne Convention, which again provides a basis for a higher and much more detailed protection. So this explains why it is important to strengthen the Berne Convention, because it would compel, in a way, all countries that would adhere to it, and maybe including those that now are only members of the UCC or members of no convention, to accept such a higher level of protection.

And this comes to the question of GATT. If this becomes the basis for copyright protection in various countries and you use only the GATT largely for enforcement, you are going to enforce a much higher level of protection than the lower one provided for by the UCC.

I hope this is a clear answer. Thank you.

Mr. KASTENMEIER. I recognize Mr. Liedes. We will conclude with the response to this question. Please, Mr. Liedes.

Mr. LIEDES. Thank you very much indeed, Mr. Chairman. Director General, Honorable Congressmen. Since the question of selfexecution of this convention is being extensively dealt with, I would like to address this point first.

I entirely agree with the school of thought represented by the Director General. This question is completely up to the constitution of the countries which are joining, the Berne Convention. There are two possible cases, depending on the constitution or constitutional tradition or practices. You have to have a national law which is in conformity with the convention and the responsibilities taken by the government or the parliament of the country, or there shall be a constitution that allows a convention to be applied directly and construed directly by the courts.

I would like to comment on a detail in Madam Möller's speech dealing with an example concerning moral rights. The conclusion whether there is a breach of the convention, or whether the convention can be directly applied shall, even in this case be based on the constitution of the respective country.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you, Mr. Liedes.