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the rights at the outset for all authors of a given category or for all works of a given media.

It is basically not a social convention. It does not give social rights and I stress this because I come from a country known for its, let us say, “collective approaches” to things. Collective approaches, where they can be found in my country, as in the Nordic countries are based upon the individuality of the rights (being the rights of individuals) who may have transferred their rights to others and are the ones profiting from the collective arrangements which may be at hand or which may have been established with a view to future developments.

Modern uses crave for collective solutions and I believe that one of the big issues for development internationally of the law about high technology in new media is how the collective means can be applied and the discussion about it occurs internationally right now. It has admittedly been with us for reprography, and for some other uses, but I believe that it is something that will come. The Berne Convention does not say one word about all these things.

But it would be most fruitful if all countries which are affected by modern development of technology and media were to take their part in the discussion within the context of the Berne Convention because that is one outstanding way of making discussions fruitful and preventing misunderstanding.

I should also like to add one thing about the Berne Convention in this relation, in particular, that is about the compulsory licenses.

There are provisions in the Berne Convention making it possible for compulsory licenses. Compulsory licenses are very blunt instruments. Usually they are used in the very most blunt way. The Berne Convention does not say how a compulsory license should be

a made, applied or handled but I believe that there are, I know that there are, approaches on how to handle the needs where compulsory licenses usually come in as a kind of first hand instrument in discussions which are not as blunt as the compulsory license in its usually used form. We may, for instance, weaken it at times, under circumstances in certain fields, just by prescribing that the one who wants to use a compulsory license would have the right of having based his claim on it only if he first gave notice to an organization which can list the uses and then cash in or not the amounts set by the appropriate body. That is just one example. There are other things which we could tell you about in that respect too.

The Berne Convention does not constrain any freedom with regard to the fields of high technology and the new media, to my view. If there is a matter of freedom it regards widening the scope of protection. You must not go under the Berne limit but you are free to do whatever to enhance the protection. It does not block any endeavour to create special conventions. You have the examples already set within the satellite field, the phonogram field, etc.

The Berne Convention is open to new subject matter by being as imprecise as I indicated to you initially, the only criteria being literary and artistic works. One country considers something to be a literary and an artistic works and another country does not, then, if you are in the Berne Union with both these countries, the one who does not, seeks protection in the first mentioned country and the other not in the second mentioned but then there is an open question. How one would discuss this to the pleasure of all affected. This discussion could better take place in the body where both belong rather than in a kind of system where no-one really knows who is speaking for whom.

There has been a discussion about new media in terms of what originality criteria may apply. The Berne Convention does not say anything about the content of an originality criteria. If you want to start your way, the U.S. way, by just looking backwards with your originality thoughts and not forwards, then you just say copied or not copied. You may do that. That is roughly put, but I explain this way because I am short of time.

I imagine the U.S. court's role in this: if the court wants to be impressed by what we are doing in Europe, that is nice. If we are impressed by what you do in the U.S., that is nice. But we should, then, be able to do that both ways, and we should learn not to be afraid of doing that both ways. That is an educational thing. I do not believe those who say that there is a threat by adhering to the Berne Convention of a kind of influx of ideas which might go the wrong way from an American perspective, who have a very good standing in the future development of this field of law. It is a matter of taking and giving influences from a wider market and these rights, may be given by God or by whomever, they are the rights of the market and the market is not your market, the market is the world market. If you want to fight piracy, of course you must be representative of the standards you stand for and I find that this is an issue which really stands out from all the discussions I have read about earlier as one of the major ones related to this piracy issue. You must raise your standard of "believability,

You will want to set an example by joining Berne. You are presently buying international protection for payment in aid and trade. That is your world situation in discussing with Korea, Singapore, Turkey and others. In some of these countries, high technology is looked upon as an asset in their improper use of it. If you want to change that, set the example. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you Professor Karnell. Next the chair would like to call upon Monsieur Jean-Louis Comte.

Monsieur Comte. Mr. Chairman Kastenmeier, Honorable representatives, Director General, Ladies and Gentlemen, let me first thank you for the invitation and for the opportunity to express some personal views on the Berne Convention. The topic "the Berne Convention and high technology' has basically two aspects. One concerns the subject matter of the protection-the catalogue of protected works-and the other the rights granted, that is, the rights conferred to authors.

Concerning the first aspect, I would like to make two preliminary remarks.

First from the copyright point of view, the use of high technology to create a work of literature or art does not give rise to any problems. Whether a piece of music is composed or improvised with the aid of a computer or whether CAD-computer aided design-is used for the drawing of an architectural work, the result remains the same: a work protected by copyright and therefore also by the Berne Convention. Second, it seems clear to me that a country which grants copyright protection to new categories of works and therefore considers the Berne Convention to be applicable must, pursuant to the principle of national treatment, grant this protection also to foreign nationals even if their home country does not protect the category of works in question by means of copyright.

Mr. Chairman, the Berne Convention is basically framed to protect literature and art, in other words, every cultural activity. This conception has always been somewhat modified by the explicit inclusion of scientific works. Indeed, some examples of protected works given in Article 2.1 of the Paris version go beyond this cultural scope. Topographical works, and works of architecture are good examples. Nevertheless, all categories of works mentioned in the Convention have one thing in common: not their contents or ideas are protected but only their expression. What follows is even more important: works protected by copyright are susceptible to perception by human senses.

In addition to the intellectual contents, a work must also contain, what I would call, a formal or an aesthetic surplus. A further requirement which has to be met in order to qualify as a work, is that this formal surplus must be more or less original. Of course, this does not follow from the text of the convention but it follows from the whole conception of this convention. At any rate, the member States are undisputedly allowed to require such an originality and also to determine by law or by jurisprudence the level of this originality.

When trying to extend Article 2.1 to new categories of protected works, namely to works with a technical nexus, it is precisely this fact which gives rise to the biggest problems as it is by far not always the formal originality which constitutes the commercial value of an industrial product. Therefore even if one would accept that Article 2.1 of the Berne Convention obliges the member States to protect certain technical creations according to the Convention, this could turn out to be quite ineffective because the member States remain free to exclude most of the products by providing for a very high standard of originality. However, in the case of computer programs, legal protection is specifically required for rather low level programs which are widely distributed and therefore highly exposed to piracy, while complex and individual programs, developed to solve a specific problem, are mostly the subject matter of detailed contracts.

The second aspect of our topic concerns the scope of protection, that is the different rights granted for the various categories of works. This problem is with respect to high technology much easier to solve as the whole evolution of copyright grounds on the needs to protect the use of works by technical means. The basic concept of the copyright protection, that is to say, the principle pursuant to which any use of the work is left to the author gives an adequate basis to deal with new technical possibilities. Consequently, it does not cause any difficulties to apply, for example, the reproduction right of the author to the storing in a data base or the broadcasting or retransmission right to the transmission by satellite or cable. The more difficult questions are likely to arise out of a "too much rather than of a "not enough” protection problem. Narrow exceptions, adequate when using a work by means of letterpress printing, may not be sufficient in the field of electronic communication. At any rate, copyright should not endanger the application of new communication techniques by a too excessive legal protection.

So, in my opinion the Berne Convention is very well adapted to grant protection of works against their use by means of high technology, but the treaty protection of predominantly industrial cre ations is more problematic. The Convention may be quite useful as an instrument of protection for certain industrial creations in an early phase as it has the advantage of being universal to a large extent and as it is flexible and grants protection without formalities. However, it will, in particular in the field of computer software protection, take a long time until either a consensus on the interpretation of the Convention is reached or until, by means of a revision, a substantial harmonization of the national laws in accordance with the Convention is achieved. Faced with such prospects, the question arises whether specific fields could not be har. monized more quickly by means of specific international treaties. The treaty prepared by WIPO on the protection of semiconductor integrated circuits may serve as a good example in this respect. Why not do something similar for the protection of computer software?

And now, Mr. Chairman, if you wish, Mr. Grossenbacher may add some remarks to my rather general statement. Than you Mr. Chairman. [The written statement of Mr. Comte follows: STATEMENT BY DR. JEAN-LOUIS COMTE, DIRECTOR OF THE Swiss FEDERAL

INTELLECTUAL PROPERTY OFFICE One can hardly have doubts about the fact that philosophy and conception of the Berne Convention are adapted specifically to the classical scope of Copyright, to literature and art respectively to all cultural activities. Nevertheless, it is evident that international development tends to widen the scope of the Convention to technical fields by including, on the one hand, industrial achivements and by granting, on the other hand, protection against using works with the aid of modern technology. The present discussion is meant to show whether such an extension of the Conventionand therefore also of Copyright-is possible, be it under one of the existing versions of the Convention or be it by way of a revision, Further, the discussion should also elucidate to which extent such a development is desirable.

The topic "The Berne Convention and High Technology” has basically two aspects. One concerns the subject matter of protection-the catalogue of protected works-and the other the rights granted, that is the rights conferred to authors.

I will begin with the first aspect which contains more problems than the second one. As mentioned in the beginning, the Berne Convention is basically framed to protect literature and art, in other words every cultural activity. This conception has always been somewhat modified by the explicit inclusion of scientific works. Indeed, some of the examples of protected works given in Article 2,1 of the Paris version go beyond this cultural scope: Topographical works and works of architecture are good examples. Nevertheless, all categories of works mentioned in the Convention have one thing in common: not their contents or ideas are protected but only their expression. What follows is even more important: works protected by Copyright are susceptible to perception by human senses.

In addition to the intellectual contents, the mere communication of a fact or the mere instruction, a work must also contain, what I would like to call, a formal surplus or, as it is also called, an aesthetic surplus. A further requirement which has to be met in order to qualify as a work, is that this formal surplus must be more or less original. This does not follow diectly from Article 2,1 but it follows from the whole conception of the Convention. At any rate, the member states are undisputedly allowed to require such an originality and also to determine by law or jurisprudence the level of this originality.

When trying to extend Article 2,1 to new categories of protected works, namely to works with a technical nexus, it is precisely this fact which gives rise to the biggest problems. As already indicated, a first difficulty is that all works mentioned in the present catalogue of the Convention are susceptible to human perception. Therefore, they claim to contain a certain aesthetic quality or at least to stimulate human comprehension. Thus, the question arises whether this is the case with computer programs, data bases and semiconductor integrated circuits. However, be that as it may, it seems clear to me that a country which grants Copyright protection to new categories of works and therefore considers the Berne Convention to be applicable must, pursuant to the principle of national treatment, grant this protection also to foreign nationals even if their home country does not protect the category of works in question by means of Copyright. But even if this difficulty is mastered, the question of originality remains. And it is this question which is of particular interest when talking about industrial products as it is by far not always the formal originality which constitutes the commercial value of the product. Therefore, even if one would accept that Article 2,1 of the Berne Convention obliges the member states to protect certain technical achievements according to the Convention, this could turn out to be quite ineffective because the member states remain free to exclude most of the products falling under a basically proteeted category of works by providing for a very high standard of originality. Thus, particularly in the case of computer programs the need for protection would only be met very poorly. Indeed, legal protection is specifically required for rather low level programs as they circulated freely and are, due to high compatibility, also highly exposed to piracy, while complex and individual programs, developed to solve a specific problem, are mostly the subject matter of detailed contracts. In such cases, the need for legal—that is to say absolute protection-is, therefore, not as necessary.

Yet, there is one thing I would like to point out very clearly in this context in order to avoid any misunderstandings: from the Copyright point of view, the use of high technology to create a work of literature or art does not give rise to any problems. Whether a piece of music is composed or improvised with the aid of a computer or whether CAD (Computer Aided Design) is used for the drawing of an architectural work—the result remains the same: A work protected by Copyright and therefore also by the Berne Convention.

Up to now I have been talking only of the first of the two main aspects, the catalogue of protected works or, in other words, the scope of application of the Convention. The second aspect concerns, as already mentioned, the scope of protection, that is the different rights granted for the various work categories. Based on the philosophy of the Convention, this problem is, with respect to high technology, much easier to solve as the whole evolution of Copyright grounds on the needs to protect the use of works by technical means. It was the invention of letterpress printing by Gutenberg-at that time no doubt high technology-which set the ball rolling. This does not mean to say, that the continuing development of new technologies does not raise difficulties in legislation and jurisprudence as to the reproduction, dissemination, or other use of works protected by Copyright-on the contrary. But the basic concept of Copyright protection as it is for example contained in the draft for a revised Swiss Copyright Act, that is to say the principle pursuant to which any use of the work is left to the author, gives an adequate basis to deal with new technical possibilities. Consequently, it does not cause any difficulties to apply, for example, the reproduction right of the author to the storing in a database, or the broadcasting or retransmission right to the transmission by satellite or cable. The more difficult questions are likely to arise out of a "too much” rather than a "not enough” protection problem. Narrow exceptions, adequate when using a work by means of letterpress printing, are not sufficient in the field of electronic communication even if in both cases a work of literature is concerned as subject matter and the reproduction right as exclusive right. On the other hand, Copyright should not endanger the application of new communication techniques by a too excessive legal protection.

With these introductory remarks, I wanted to show that while the Berne Convention is very well adapted to grant protection of works against their use by means of high technology, the treaty protection of predominantly industrial achievements is far more problematic. The Convention may, of course, be quite useful as an instrument of protection for certain technical achievements in an early phase as it has the advantage of being universal to a large extent and as it is flexible and grants protection without any formalities. However, its integration capacity will probably remain rather weak in those fields which do not fall into its traditional domain. It will, in particular in the field of computer software protection, take a long time until either a consensus on the interpretation of the Convention is reached or until, by means of a revision, a substantial harmonization of the national laws in accord

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