brary legal deposit of works printed in the U.S. We have something of this kind and this is considered to have nothing to do with copyright, but to preserve the cultural memory of the country, for future generations. And this is really something that could be regulated in a very different level of legislation.

Your manufacturing clause has been removed, no other real technical reasons are there, and there are also some political reasons you, I am sure, are very sensitive to, that may be remer bered. In my opinion, for the United States to enter the Berne Convention is a matter of political credibility. The backdoor fotection that has been used during past years, for example through publishing in Canada, is not really fair vis-à-vis the other Berne member countries. Those countries, for example my country, give national treatment to your works published in Canada through this backdoor system. And our national treatment is right now 80 years protection after the author's death. (Now with the new law it will be reduced to 60, by the way.) But on the contrary, the works of our nationals are practically in public domain in your country because of this registration formality I mentioned before. And, it does not look very equitable.

On the other hand, not being in Berne weakens the United States' position to fight against piracy; the recent GATT measures undertaken by the U.S. are being seen by developing countries as a sort of act of force for the above reasons, the same reasons that are applicable for a developed country like mine as I previously mentioned.

On the other hand, the USSR is now involved in a study to adhere to the Berne Convention. Last September I had the opportunity to talk in Moscow to the Director General of VAAP and our delegation was informed that a working group had been established precisely to study adherence to the Berne Convention.

For some countries, finally, it sometimes seems difficult to support U.S. international initiatives in this field. I must regret that the three bills pending in your Senate all exclude retroactivity whilst, for example, the United States got retroactive protection for works of U.S. nationals in the Republic of Korea recently. I mean all these reasons should be also taken into account vis-a-vis the international community. So, Mr. Chairman, my last words should be: do not hesitate any longer, join us, come to the Berne Union, you are really welcome! Thank you.

Mr. KASTENMEIER. Thank you Señora Milagros del Corral. I'd like to yield to my colleague, the Gentleman from California, Mr. Moorhead.

Mr. MOORHEAD. As I commented a little earlier, this moral rights question is a major question that comes up in our country. I think the case that Mrs. Möller brought up about a publisher changing the opinion of an author in an article would have the same results in our country as it would in yours, perhaps not on the basis of moral rights but on another basis that almost slanders the author to change his opinion. I know people would be concerned, like Señora Milagros del Corral, pointed out that an author could withdraw a work from publication, just about the time the publisher was beginning to make some money on the book or article he published if it could be withdrawn by the author without any remu

neration, so there will be a concern there. But the biggest discussion in the U.S., deals with motion pictures which have been out in black and white for many, many years and Ted Turner has bought a large package of them and is reprinting them in color. Many of the directors that participated in those films are aguing that their moral rights have been violated as the nature of the film has been changed and my question would be under the Berne Convention if there would be a right there that could be enforced?

Mrs. MÖLLER. Thank you Mr. Moorhead. May I say first that I stopped my statement very abruptly and I may have given the impression that I did not consider moral rights as very important because they don't play such as important role in practice. Not at all so. I apply great importance to the moral rights, they have to be there, and you, yourself, have just brought a case in my country where moral rights would be involved because our moral rights go further than the Berne Convention moral rights. In the Federal Republic of Germany, as in other countries, one is not allowed to make any alterations to an author's work. So the author during his lifetime and his heirs up to 70 years after the author's death could refuse any alteration, without giving any reasons for it. That is according to our law a moral right, but the Berne Convention grants this right only if the modification does dishonor to the reputation of the author. In the case you mentioned, the honor or reputation of the film director or the cameraman, is at issue which of course, does not go far. It ultimately has to be decided by the courts. The decision of the courts will depend on the individual case. Sometimes, it may be such damage that young people who don't know the old black and white films but only see the colorized films say "My Goodness, those kind of films they did, it's terrible, it's awful, they didn't have any tests or artificial understanding at all," so that, in my opinion, would damage the honor and the reputation of the film director and the cameraman. But there might be another film which might be improved by the coloring and people may say "It's a great work of art." In that case, the courts, to my opinion, would have to say "Well, the reputation is not being in question here, so it's not a case of the moral law." Always on the basis of the way the moral rights are being shaped in the Berne Convention. As I said, in my country, it's different, no alteration is permitted without the author's consent.

Mr. KASTENMEIER. Mr. Verkade, I guess, is first.

Professor VERKADE. Thank you, Mr. Chairman. As to the question of the Honorable Mr. Moorhead, with regard to withdrawal of texts before publishing, maybe I did not understand your question very well, but I think it seems to me to be impossible. If you have contracted, made agreements, express or silent, that you give material to a publisher to publish, you cannot withdraw it. I know in Germany which has indeed farreaching moral rights, there is a possibility to withdraw because of a change of opinion, but I think that's not very common in other European countries and it is at least not prescribed by the Berne Convention to give such farreaching moral rights. So, for withdrawal, I don't see real possibilities. We had once a case, that a small designer had, when he was 20 years old, made a design and 20 years later he was famous and then a publisher wanted to use his 20 year old work again, al

though he had changed his style. What does the practical court do at least in the Netherlands? It says: Well, there has been a contract that the publisher may publish it as long as he wants, copyrights have been transferred, so he may continue to publish it but he should make a small notice that this is not in conformity with the actual views of the artist. With motion pictures it's the same. From time to time, there is a problem. We had an interesting case, a famous female writer in the Netherlands had written a book on her war history, a Jewish woman, and she had given full adaptation rights to a film publishing company. Then the film producing company had made changes, so that she had a Nazi friend, although she hadn't in her book. In such a case, what does the practical court do at least in the Netherlands? It does not forbid the film, it is not prohibited, but the court says there has to be shown a notice at the end and at the beginning of the film that this is not in conformity with the book and that this is not the idea of the author. I think such practical solutions should be considered also by you. Thank you.

Mr. KASTENMEIER. Thank you Mr. Verkade. Professor Karnell, were you seeking recognition?

Professor KARNELL. Thank you Mr. Chairman. I am not here to "sell out" the Berne Convention, but I would like to settle a possible cause of misunderstanding regarding the Convention. It doesn't say anything about non-transferability of moral rights. The text of the Convention says that "Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work," etc. This doesn't say anything, except on a time line, about what may happen. It says that if he has divested himself of his economic rights, the next step would be for him to consider to what extent he wants to divest himself of his moral rights, if you look at the Convention text that way. If you would want to find some guidance as to how to look at this, of course you may find documentation about that.

You may find the W.I.P.O. Guide suggesting that the rights are inalienable, at the same time saying, however, on this point too, that the courts have some freedom of action. That is to put it in the tradition of how the Berne Convention has usually been interpreted in this respect. And, of course, it is important that these moral rights, called thus, are, in principle, accepted in conformity with such a tradition, in so far as they are considered as rights.

We use languages as the only tool to make sense of law and at times you don't speak about rights; you talk about duties instead or of obligations. When you talk about other words for the same things, you will find statutory provisions which rely vaguely have anything to do with the individuality of any author quite useable to protect interests which relate to his individuality being bought by someone, employing someone for his being the individual to carry out a job, et cetera. The Berne Convention does not really say anything about the details of all this.

I am pretty convinced, by having read the discussion which has been going on in the U.S. about these things, that the opponents of the Berne Convention on the basis of this moral right issue fear that United States courts might be impressed by the European phi

losophy as it has been taken down into statutory or case law in one country or the other. But that is up to you yourself to decide whatever you want to take from that source and it has nothing to do with the text of the Berne Convention.

I may take as an example to what can be done in statutory law about these moral rights from Sweden. I read to you part of the section 3 of our Copyright Act, stating: "When copies of a work are produced or when it is made available to the public, the name of the author shall be stated," and, underlining now, "to the extent and in the manner required by proper usage." Then there is a matter of what is prejudicial to the author's literary or artistic reputation or to his individuality as criteria for what changes may be made in work and relating to in what form the work may be made available to the public. And it also says that the author may with binding effect only waive his right. There you have another carefully chosen word again, waiving this right, is not transferring it or assigning it. It simply means that to the extent that it is waived, it will not be used. The moral rights rule clearly specified uses of the work and I may say that this has not caused any problem in implementation by the courts, actually. In Sweden, we have had very few cases, very few cases relative to this part of our statute. And, there are none of these cases where the outcome might have anything to do with any, from my point of view, major flaw, to my knowledge in US law. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you, Professor Karnell. Were Mr. Gabay and Mr. Boytha both seeking recognition?

Mr. GABAY. Thank you, Mr. Chairman. I would like to follow along the same lines as Professor Karnell. In fact, I was going to make the same points and I would not like to repeat but also to indicate that the new Israeli law of 1981 is a recent law. As I have indicated earlier, we did not have any moral right provision in the Israeli copyright law until 1981, although Israel has been a member of the Berne Convention since 1950. And now we have more or less formulated our law along the lines of the Swedish law and not along the lines of the farreaching German law, and we say in the law "an author has the right to have his name applied to his work," and I emphasize "in the accepted manner and extent" and the second paragraph "and also has the right to object to any distortion, mutilation or other modification of his work or other derogatory action in relation to such work," and I would like to emphasize, "which is liable to be prejudicial to his honor or reputation." Now, it means that if the modification is not prejudical to his honor or reputation this can be accepted. The onus is on him. So the violation is considered a "civil wrong," that is to say the same principles that are applied in the system of the realm of torts would apply here. So that not any modification is accepted but a modification which is liable to be prejudicial to his honor or reputation, and this refers to the question of liability, because if the modification is not prejudicial to his honor or reputation, he may agree to it and he may waive his right and he may accept any modification. So that if there is an agreement, then there would be no problem.

Obviously, you are worried, I understand that Representative Moorhead is worried about those cases where there would be no

agreement and then the author might argue that this is prejudicial to his honor and reputation and might exploit the provision in his favor. But then I think first, the onus is on him, second, still it does not mean that he may not waive his right if the modification does not go to that extent that it is prejudicial to his honor or reputation. Because if it is prejudicial to his honor or reputation, then I think that in that particular case, of course, he cannot waive that right, he would not accept that anything would be against his reputation. But this limits the right to a very narrow scope. I think that your apprehension in the United States with respect to this provision is a bit, if I may say so, a bit exaggerated in terms of the real provisions in Berne and your possibility of legislating along the lines of the Berne Convention and not necessarily along the lines of the laws of Germany or other countries. Thank you.

Mr. KASTENMEIER. Thank you, Mr. Gabay. Mr. Boytha.

Mr. BOYTHA. Mr. Chairman, I should like to say a few words concerning the question raised by you, Sir, with regard to the problem of self-execution relate to moral rights; and, in this context I should like to speak also of the only signficant difference that can be discovered, when examining the three bills, between your bill, Sir, and the other two bills aiming at the revision of the existing title 17.

I think, as to the implementation of the Berne Convention, the real question is not whether this is effected by virtue of the selfexecuting capacity of the Convention or by extending the domestic copyright law also to foreign works. The real point is that any country joining the Berne Union must be in a position to give effect to any provisions of the Berne Convention under its domestic law, be it by enacting the Convention itself or by promulgating a law or providing for such a law in general terms which is able to implement the Berne Convention as the provisions of that Convention require.

Now, we could say that in the United Kingdom over the years, as referred to by Mr. Gabay, there was no special moral right provision contained in the copyright act. Nonetheless, the United Kingdom was in a position to grant such moral rights. But why then did they decide on introducing in their copyright act in the course of the present revision, specific provisions on moral rights? Why did Israel do the same thing? And why did you propose, Sir, in your bill, the same, that is to say to repeat in your national law the provisions pertaining to moral rights as contained in the Berne Union?

I think that there is a difference between granting moral rights in the framework of unfair competition legislation or in the framework of the law on torts, because in a civil law procedure it is not always possible also to implement the law on torts. Then you have to decide under different jurisdictions on the same case and it is also justified merely for conveniences sake to have it clearly stated in the copyright act that moral rights should be protected under the civil law. Therefore I feel that your bill, repeating the Berne Convention's paragraph on moral rights, which is understood as not being self executing under your constitution, might be useful for convenience sake, too, and this is enough in itself.