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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 any. thing 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 without 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.
ROUNDTABLE DISCUSSIONS ON UNITED STATES
ADHERENCE TO THE BERNE CONVENTION
NOVEMBER 26, 1987
HOUSE OF REPRESENTATIVES,
Geneva, Switzerland. The members met at 10 a.m. at the World Intellectual Property Organization, Geneva, Switzerland, Hon. Robert W. Kastenmeier (chairman of the delegation) presiding.
Present: Representatives Kastenmeier, Fish, Moorhead, Hyde and Berman
Staff present: Michael J. Remington, chief counsel; Virginia Sloan, counsel; and Thomas E. Mooney, associate counsel
Also present: Ralph Oman, Register of Copyrights; Lewis Flacks, Policy Planning Advisor, Copyright Office; Arthur E. White, Director of Congressional Affairs, U.S. Patent and Trademark Office; Colonel Frank Moran, United States Air Force; and TSgt Bryan Williams, United States Air Force.
Mr. KASTENMEIER. Good morning to everyone. This morning we will have Panels 3 and 4. It is our expectation to clear our work by 12 noon. We will try to break up the two panels therefore into more or less an hour and a quarter each and the chairman again will beg indulgence of our consultants in terms of summarizing their statements so that we may in fact have an opportunity for discussions of the subject matter. After we conclude this morning, some of the delegation will be able to stay a bit longer perhaps and if you are not under time constraints will be able to converse somewhat informally. Other members of the delegation will be rushing off to make transportation connections, including myself.
I must say that both discussions yesterday were very high level and of considerable assistance to us. We would hope and expect that this morning's presentations and commentary will likewise meet that high standard.
PANEL 3.-THE BERNE CONVENTION AND HIGH TECHNOLOGY
Panel 3 was devised to confront the proposition of the Berne Convention and high technology. I note that often conventions or codifications are designed or oriented towards protection of traditional forms of cultural expression. It is a continuing issue in many countries as to what the application would be or indeed what it is, especially in the case of this Convention, for new high technologies such as computer programs, semi-conductor chips, data bases, communications such as satellite signals, cable television, technology in
private copying and many other aspects reflecting the advance of technology in many of our societies. The question, of course, is the extent that any convention is adaptable or in fact can contemplate these areas without modification. We, in the United States, are also interested in the degree of protection which Berne contemplates for architectural works for it is assumed that in that respect, in particular, the United States would have to conform its own copyright laws. So with that and with other aspects of what we anticipated in terms of the interface of high technology and the Berne Convention, I will invite our four participants-Professor Gunnar Karnell, Monsieur Jean-Louis Comte, Mr. Roland Grossenbacher, and Mr. Jukka Liedes-to make their contributions. The first person we would like to greet in that connection is Professor Karnell.
Professor KARNELL. Thank you Mr. Chairman. I am not expressing any Swedish views here. I am expressing my personal views, having worked within the copyright field since about 1958. I was a delegate of Sweden to the 1967 Stockholm Conference whose mate rial Articles 1 to 20 of the Berne convention are part of the Paris text. I have been on the Swedish Committee to revise the Swedish Copyright Statute since 1976. Nevertheless, I shall try to take a more generalist view than this background might indicate.
To my experience, the Berne Convention, in its present shape, has coped well with the technological development, by being as imprecise as it is.
It has a high standard with regard to protection level internationally but that does not depend upon its being very specific in sharpening rights in one or the other respect. It is the general character of the rights given, the general character of the subject matter protected, that is at the very essence of it all. Even if the Berne Convention would not look the same if it was invented today-and I am sure it would not-it is a good tool for developing an acceptable standard of protection in the world of today. And I say that also regarding the topics at the center of this morning's discussion being then high technology and media developments over the last ecade and what could be foreseeable from the standpoint of today.
If you accept adherence to Berne, you will set an example to the world at the highest general level perceivable today in development of these rights. The issue of high technology in new media tends, to cloud the modern world's conscience about the importance of the individual author. I should like to say something about that: The individual author disappears rather often in considerations about the uses of what he has done and about the economics attached to various forms of such uses.
It is my experience that in those countries in Europe where I have been able to follow legislative works, and where those modern issues have been the subject of discussion, we have always found one basic consideration which is attached to any situation where the Berne Convention enters into discussion and that is that the Berne Convention gives individual rights. There is no way to construe the Convention to mean, except when it explicitly allows it as in Article 2.4, that a collectivity, state or organization, shall have