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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 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.
But I think that it is of even more value to have protection of moral rights declared in the copyright act.
In the United Kingdom, a few weeks ago, I attended a theatrical performance of “Thursday's Ladies” and I bought the usual program pamphlet on the title page of which I was looking for the author; I did not find it. I was looking in the inside of that “Thursday's Ladies” program. I found the name of the director, designer, lighting designer, company, stage manager, deputy stage manager, assistant manager, but no credit was given to the author. Then I had to scrutinize the whole pamphlet. I saw photos. There were the principal actors and then on the sixth or the seventh page, in a very small corner, I found a charming lady and she was there identified as the author. Now, if we have it stated in our law explicitly that a claim of authorship exists and the authors may claim the indication of their name, I think it becomes normal to indicate beside the stage assistant and vice assistant, stage managers and so on, also the name of the author, and I think this to be a valid argument.
One last short observation as to the nature of the moral rights. I think that from our point of view it appears an academic question if it is inalienable or not. I have the feeling that in spite of the Berne Convention not stating explicitly that these rights are inalienable, it can be interpreted only in that way that the moral rights remain with the author irrespective of what kind of dispositions or contracts he is signing. But from the practical point of view, it seems to be quite the same if he is alienating his right, or is exercising his right in a way limiting his further possibilities of disposing of the same moral right by means of contracts, or even by virtue of legislation as is the case in many countries concerning the works made under a service contract, in the course of executing duties under employment. In the long run, however, there is nevertheless a difference. If I alienated my moral right then the person, the assignee of my moral right can do arbitrarily whatever he wants in the field covered by my moral right. If I exercise this moral right by means of contracts, then I can consent to that which is necessary to use my work freely and without hindrances as justified by the purpose agreed upon and the user, the prospective user may acquire the necessary position to use the work by means of a contract without taking the moral right away from the author. So I think that this should not be a question of waiver, this is a question of the exercise of moral rights and this could be perhaps worded accordingly also in the bill. Thank you, Mr. Chairman.
Mr. KASTENMEIER. Thank you, Mr. Boytha. The Chairman would say that the hour is drawing late. We have, I think, individuals seeking recognition in this order: Mr. Tarnofsky, Mr. Dittrich, Mr. Rumphorst and we can perhaps conclude at that point for the noon hour. I would like to ask Mr. Tarnofsky if, in addition to responding or commenting as he deems fit to the question presumably raised by Mr. Moorhead, he would also answer another question which I would put with Mr. Moorhead's question. Over the last twenty years, would you observe if you did a survey of Berne adherents, not necessarily European adherents only but Berne adherents, that there is any dynamic with respect to changing individual nations' laws with respect to moral rights. I know that Great Britain is undergoing, at this very moment, such a concern. The thrust of my question is to ask whether there is a movement perceptibly towards stronger moral rights among Berne member States? Or is it static, with no real change in substance of the statutory laws in the various countries in perhaps last twenty years?
I would also like to recognize Mr. Fish.
Mr. Fish. If I could do the same thing, and pose a question that the remaining experts could also address in their responses, I think that they are ready to anyway, because there has been a division of opinion. It seems to me that I would like to hear to what extent contracts waiving the exercise of a moral right can be recognized by Berne. What form, if it is recognized, what form must the transfer take?
Mr. KASTENMEIER. All right. I call on Mr. Tarnofsky.
Mr. TARNOFSKY. Thank you, Mr. Chairman. I am not really very familiar with developments in other countries over the last twenty years, but I am aware of the position in my own country. We currently provide moral rights through the common law. This has hardly ever been tested and in order to clarify the situation, we are introducing moral rights into our statutory law which is currently being revised. We are confident that we will then be in full compliance with the 1971 text of the Berne Convention. I will quickly go over what we are providing on this, it will only take a couple of minutes, I think. We cover authors of literary, dramatic, musical and artistic works and also film directors. The term will equal the copyright term. The right of paternity will be conferred but we will require it to be asserted by the author (authors do not like that idea very much, but obviously we try to balance a lot of interests here). The right of integrity will be subject to justified modification and we define in general terms what is meant by justified modification. It will not be retrospective so we will not be covering the situation let us say of colorizing old black and white films. We do provide for a waiver in writing, so contract will override the moral right. It will not be assignable and we will not have provision concerning the withdrawal of works already on the market, at least not in the copyright statute. Those are what I call the "bull points" of our proposals which actually run to quite a number of pages. We have tried to cover virtually every eventuality. We have been criticized that, in fact, we have covered too many eventualities. But it is really a new thing for us, a new departure for us. As I said, authors are not too enamoured of the idea of having to assert the right of paternity and employers, such as newspaper proprietors, are concerned that in some way their editorial practice will be affected, but our answer to that is basically twofold. Firstly, contracts override these rights and secondly, all of these productions (newspapers and so forth), are in fact going on in the other countries of Europe which do have moral rights and have had them for some time and they seem to be very successful in those endeavours, whether it is film making, production of books, newspapers or whatever. So that, Mr. Chairman, is basically our position at the moment. We are a few months behind Spain. I hope that we will have this new bill enacted by early summer next year. Thank you.
Mr. KASTENMEIER. Now the chair would like to call again on Dr. Dittrich to take on any of those questions or respond as you wish to the general theme.
Dr. DITTRICH. Thank you very much, Mr. Chairman. I will try to be very brief. When asking for the floor, I had the intention to give an additional answer to the question of the distinguished Congressman, Mr. Moorhead. The situation in my country is very similar to the Scandinavian, especially the Swedish, situation.
We have a provision in our law saying that in general every alteration needs the consent of the author. But then there is the first exception, by contract every alteration can be allowed. And such contracts are binding. Then there are the third and the fourth line of the legislation. The third line is that alterations which damage the reputation and the honor of the author very severely, cannot be waived by contract. There are the examples that you are writing a religious book, and the publishing company is changing the content and making a pamphlet against religion. Or something else. And I think in all the member countries and even in your country, such cases would be dealt with by the court on general legal ideas in a negative way for the publisher and a positive one for the author. And the fourth line of the legislation is in addition in relation to the Swedish situation that if nothing has been agreed to in the contract then the user may make such alterations which are in conformity with fair established practice. I think that is an additional answer to the question of Congressman Mr. Moorhead.
My second point would relate to your question, Mr. Chairman. It is very difficult to summarize in a very few sentences the development of the last twenty years with the Berne Convention. My personal impression is that the two principal systems which are found together under the roof of the Berne Convention since it was founded a little more than 100 years ago--the so-called "droit d'auteur" system and the so-called “copyright” system or using other words, the French approach and the Anglo-Saxon approach-are moving together. The new modifications of Great Britain and Israel are good examples to illustrate in that this is true even concerning moral rights.
My last point relates to the question which has been put up by the Honorable Mr. Fish. I think that the Berne Convention is silent concerning the form of waiving rights. The Berne Convention has only very few provisions which could be categorized as dealing with contract law in the field of copyright. And in this context I think that the national legislative is free to decide whether or not it decides that it must be in writing, that it must be registered, or to say nothing. I hope that is a clear answer. Thank you, very much.
Mr. KASTENMEIER. Thank you, Dr. Dittrich. The final commentator that I would call on then will be Mr. Rumphorst to an earlier sought recognition.
Mr. RUMPHORST. Thank you, Mr. Chairman, I will be very brief. I would like to say that I agree with literally every word that Mr. Boytha said on the various issues he addressed. I would just like to add one personal comment, a matter which vexes me a little. To tell foreign authors that if they want to avail themselves of moral rights in the United States, they have to go to State courts and to