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. Chair

man.

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

find their law there, this does not, I think, seem particularly fair. And I would think that this would be also the feeling of the American legislature, which decided very clearly now that copyright is a matter for the Federal legislation and not for the States. But to refer a foreign author to the copyright act as far as pecuniary rights are concerned, and then to refer him to a matter which is not for the States to decide, that is copyright law, but this time moral rights, I would find it difficult as a concept although I am sure that you have an answer to that.

The other point, if I may briefly reply to Representative Fish, the question of how can you waive the right or the exercise of the right, rather. If I may quote to you what happens in Germany in broadcasting, and I can assure you this is the same all over with minor variations. As far as the right of the author to be named is concerned, the standard contracts between German broadcasters and authors state that the authors' name shall be mentioned in the broadcast to the extent that this is customary in broadcasting. There you have the answer.

As far as the right is concerned, not to permit any changes or substantial alterations, there again you have already heard again the quote from the German copyright act itself, which regulates this question as far as motion pictures are concerned. Only gross distortions are excluded, otherwise the producer is free to do anything he likes. And, again, in the standard contract between German broadcasters and authors, this concerns in particular radio, of course, it is said that the broadcaster is free to modify the work, to alter it, to change it, to adapt it, to use extracts thereof, to use extracts in combination with other works and so forth and that the author to this extent and to the extent that is reasonable and permissible under the law, waives the exercise of his moral right. So, I think that this shows you that in practice it does not really cause much of a problem. The problem exists only, and there is a problem, when there has been no contract and when the case comes up later-just as the Ted Turner case-on something which people never thought of at the time. This is a question of pecuniary rights and not so much a question of moral rights. I am sure that the director wants money. He would be glad to waive the exercise of his moral rights if he would get paid for it. And there you may wonder whether he does not have a case. After all if through this new technology the work gets exploited, gets into the service again, why should not the director also get a little share in that? Thank you.

Mr. KASTENMEIER. Thank you, Mr. Rumphorst. Mr. Fish points out to the Chairman, that Mrs. Möller is seeking recognition. Mrs. MÖLLER. If there is still time, Mr. Chairman.

Mr. KASTENMEIER. Well, we will commission Mr. Rumphorst to more carefully police you this time, if you care to respond.

Mrs. MÖLLER. Thank you. Mr. Chairman, relating to the question of inalienability, I agree with everything that Mr. Boytha has said. When the question arose to waive or to alienate the rights, we were talking about the right to object to simple modifications and that is not a case of the Berne Convention. According to the Berne Convention, an author does not have the right to object to simple modification, so the US law could allow simple modifications with

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out the author's consent. The only case the Berne Convention regulates is modifications which are against the honor and the reputation of the author. That right, I think, cannot be alienated, because if you are an author and find out that your book has been rewritten in a way that is absolutely horrifying-for example, you have written a serious novel and you find out that it has been turned into a pornographic pamphlet-that would be against your honor and I am quite sure that the American law has remedies against that and that the American law says this is so fundamental that you cannot waive your right to oppose against such distortion beforehand and for all times.

Now, you have asked, I think, Mr. Fish, for the form of the contract to transfer moral rights, or abstain from exercising moral rights. There are no prescriptions whatsoever. For example, I have been working as a ghost-writer for a long time. There was never a word, you know, that I gave up my right of paternity. I simply knew when I entered into the working contract that that was part of it. So I wrote these stories under a pseudonym, and that was it. And we have legions of ghost-writers and you could not have them if there would not be a possibility to abstain from exercising your rights. I could say much more, I could talk half an afternoon on moral rights but I shall finish now. Thank you.

Mr. KASTENMEIER. Thank you, Mrs. Möller. Indeed, the Chair, on behalf of all of us, desires to compliment and to congratulate our consultants, the commentators, today. It has been a most productive morning session. I would like, if I may, just before concluding, to make a presentation on behalf of the members here and Mr. Moorhead and myself. I would like to present this little folder on the United States Congress to Dr. Bogsch, and indeed we have similar folders that we would like to offer each of you. You are sort of our ex officio staff consultants. We hope that it will not embarrass you in your own country, but it is a modest token of our appreciation and esteem and we look forward to talking with you later and to meeting tomorrow morning. The hour is 9:30 a.m., tomorrow morning. We will convene in this room and I will try to be more prompt tomorrow. Until then, our conference stands adjourned.