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 excep

tions, 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 creations 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 harmonized 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 jurispru dence 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 protected 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

ance with the Convention is achieved. Faced with such prospects, the question arises whether specific fields could not be harmonized more quickly by means of specific international treaties. The treaty planned on the protection of semiconductor integrated circuits may serve as an example in this respect. Why not do something similar for the protection of computer software?

Mr. KASTENMEIER. Thank you Monsieur Comte. Now we call on Mr. Grossenbacher.

Mr. GROSSENBACHER. Than you very much Mr. Chairman. I will focus just on one of the two aspects of the topic mentioned by Mr. Comte which is the question whether the Berne Convention is apt to regulate the protection of other than traditional categories of works. I will try to do so from the point of view of a national legislator of a member State of the Berne Convention faced with the problem whether to legislate on the protection of some industrial achievements within the framework of the Berne Convention or outside the framework of the Berne Convention.

In Switzerland, we are at present dealing very intensively with the question where that is to say, by means of which legal system-industrial achievements should be dealt with. That protection is needed, has been realized long ago and is uncontested. Let me take two examples on which international interest is focused today: semiconductor integrated circuits and computer programs. These two examples are specially apt for demonstration because their legal destiny seems to go into two different directions.

As to the microchips, the U.S. legislation has set the ball rolling. An adequate and precise law outside of copyright was by way of a reciprocity clause, exported very quickly to many important countries; a specific international treaty could soon crown the achieved harmonization. Concerning computer software, it was WIPO which carried out preparatory work, also with the aim to establish an international treaty. Due to the complexity of the task, the efforts have so far not been successful. Consequently one started to look for an international passing-track and came upon copyright. I do not intend to go into detail concerning the chosen copyright solution and, in my eyes, its very small harmonizing effect. A comparison of the Federal Republic of Germany with the USA, for example, is fully sufficient to show that one can understand quite different things when saying "computer programs are protected by copyright."

I would rather prefer to outline my sceptical attitude on the basis of the problems which arise in Switzerland. The starting point: the Swiss Parliament has rejected the Copyright Bill because it did not contain a protection for computer programs and integrated circuits. The government wanted to protect both issues by other than copyright law.

Consequently, the Federal Administration is again working on the bill. As to semiconductor chip protection, no specific problems seems to arise as the solution has already been established. We will submit a law along the lines of the U.S.-law and the EC Regulation. This solution will be proposed independent of whether it will be included formally in the new Copyright Act or in a specific law. Anyway no one seems to support a copyright approach and therefore an application of the Berne Convention on semiconductors. As to computer software there are two possibilities.

First, we could just refer to computer programs in the catalogue of protected works and nothing else. This would approximately be equivalent to the German solution. The second possibility is a system containing a carefully adjusted arsenal of legal rights and remedies. What remains open is whether this solution would be part of the Copyright Act and therefore located with the framework of the Berne Convention. This would correspond with the French approach. The other choice is whether it would be, maybe together with the chip law, framed as a specific law.

The first solution-that is, just mentioning computer programs in the catalogue of protected works-has two advantages: first of all it is not the legislature but the courts which will have to do the work. Second, it follows the international trend. The list of disadvantages is longer. I shall refer to four of them:

First, as to the subject matter of protection there is practically no legal security. The question which programs will be considered as original and therefore protected by the courts, is completely open and has to be decided for every program. It is assumed that in Switzerland approximately 5% of all programs would meet the required standard of originality. All other programs, that is to say, 95% would remain without protection because of lack of originality.

Second, there will also be legal insecurity as to the scope of protection. It is for example, not at all certain whether our courts would apply the author's rights to translate a work to the translation of a computer program from one computer language into another. And what would the courts do about the moral rights? I do not know.

Third, important rights are missing in copyright. Making use of a program in a computer, that is, to run a program on a computer, is not covered by copyright or at least it is not certain at all whether the courts would consider the reproduction right to imply such a protection. Also missing is the right to transmit the program from one computer to another, that is, for instance, the use in a computer network.

Fourth, is the missing reciprocal treatment in other countries. Let us take a member State of the Berne Convention which does not have any protection for computer programs. There will be no judge in this latter country who will deduce software protection directly from the Berne Convention. To be honest this would be a very difficult undertaking. Nevertheless, this country would not violate the Berne Convention. On the other hand, we would, on the basis of the national treatment principle of the Berne Convention, be obliged to protect the programs of this country.

These are some disadvantages which are, in my view, clearly opposed to establishing in Switzerland a minimal solution by merely making reference to computer software in the catalogue of protected works.

On the other hand, a specialized legislation offers many advantages. It does not have to be based on a standard of originality and may therefore not just protect a few but most programs, in particular, mass-produced programs.

Even specific legislation can be established in the context of copyright and of the Berne Convention as the French example