Mr. KASTENMEIER. I am sorry. Are there those who are seeking recognition? Mr. Boytha.

Mr. BOYTHA. Thank you Mr. Chairman. It has been stated in the previous discussion that this was a rather complex matter. It cannot be judged at one glance, but I think this is not the first time that we are dealing with that issue, and as far as I remember, all previous investigations to the compulsory licensing in the United States found only the so-called jukebox compulsory licensing as not consistent with Berne Convention requirements. It was scrutinized here in the framework of WIPO at the international level, and also on various national levels. As to the compulsory licensing system concerning broadcasting and simultaneous cable distribution of broadcasts, as I now recollect it, I could not find anything which was inconsistent with the Berne Convention. Based on this previous investigation I would not say now that there is something which is incompatible in your present law except the jukebox matter. And I think that with the transitional solution proposed to the jukebox licensing, you come very much close to the Berne Convention, and since this transitional provision modifies the compulsory license by transforming it into an ultimate remedy it would not represent, in my view, an obstacle of your adhering to the Berne Convention.

And allow me please, Mr. Chairman, now that I should also say a few words as to the so-called retroactivity of Berne. In fact, I do not wish to add anything to that which has been said about it except for viewing a little bit its practical consequences. Mr. Tarnofsky already said that this question would arise only in respect to those countries under the present proposal of your bills-which have no, or only unclear, copyright relations to the United States. Such countries are 19 African countries, but including Egypt, and Turkey. I wish to stress, that these countries did not make any reservation when they became bound by the Berne Convention. That is to say, they would be obliged to protect all pre-existing, but not yet protected American works in their countries. On the other hand, your proposal, which is essentially not a retroactivity clause, would simply exempt works so far not protected and which have never been protected under your law, from any future protection. So it is not a statement excluding retroactive implementation of the law regarding acquired rights, it is an exclusion of certain banned works from future protection at all. And I do not know if this was really your intention because virtually it would not mean much to you, but it could induce the countries concerned to retaliate. It was discussed in various revision conferences of the Berne Union, how long can a country make reservations under Article 18 of Berne in respect to new acts or newcomers. Several proposals were made, mainly by the French delegates, that one should put an end to this possibility because the Berne Convention has strengthened over the years and there is no need anymore to allow exceptions to the protection of pre-existing works. But then others proposed, for instance, the delegation of the United Kingdom, to maintain this possibility without any restriction on time. That means that if something new happens in this context, reservations could still be made also by other countries as regards so-called retroactivity. The United States intends to strengthen the protection of

works all over the world and all Berne Union countries, small and large, do not matter in this community, firmly hope that the adherence of the United States would strengthen the Union. My country is looking forward to your adhering and I think that the exclusion of existing Berne works from future protection would not quite support the credibility of your intention to strengthen international copyright protection. The exclusion of pre-existing works from feature protection would have serious implications in certain countries which are prepared to protect your works under Berne and which seem to be trouble spots for you. In Africa, and in certain other regions, we need to strengthen copyright, and I already referred to Hungary's relations with Turkey where we achieved protection of our works; but we protect Turkish works which existed before our copyright relationship with Turkey was established. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you, Mr. Boytha. In response to the question, posed by Mr. Fish, the chair would observe that obviously commentators may desire to expand upon that. For example, we might talk about retroactivity.

What we would like to know is what your view is of current United States law or, in the alternative, the texts, if you have read them, of the two bills in which there are certain changes proposed, as to whether they meet the requirements of the Berne Convention. As to formalities, at least as proposed in the text of the two bills (to the extent to which you may have read them), are the proposed changes acceptable? Current United States law is not. With respect to compulsory licenses, the jukebox licence in current American law is objectionable to Berne. I gather the cable and the other compulsory licences are somewhat ambiguous in that connection; probably acceptable. The question that I would pose, in connection with the jukebox commentary, was is the text of the bill adequate in dealing with the jukebox compulsory licence, in which we propose a negotiated licence to replace the present system, or is it inadequate in your view?

As to retroactivity, both current American law and the provisions in the bills wherein it is stated that the United States Code as amended by this act does not provide copyright protection for any work that is in the public domain in the United States, you feel that it is not an acceptable revision for purposes of conforming with Berne. Now I state that as a proposition and would invite your comments. I believe Professor Karnell had sought recognition and later Mrs. Möller and Mr. Dittrich. Professor Karnell.

Professor KARNELL. I would somewhat like to enlarge on my earlier statement in reply to Representative Mr. Moorhead.

Now, in respect of the question by Representative Fish, I think it has already been made clear, to some extent the more precise replies to more precise questions, regarding the specific issues of the compulsory licenses as they have been proposed to stand or be amended in the US law. My earlier statement was related directly to the text of the Berne Convention. I should like to stay with that text, but the enlargement of my earlier comment has to do with what was said by Mr. Rumphorst. I think that he mirrors very well what is to be looked upon as issues of great importance in evaluating what might come into the compulsory license notion. But, as he

also indicated, it is a more or less open question what one may agree upon as being an acceptable construction of a compulsory license. And this is a discussion which has been going on over a long time in the representative organs, the W.I.P.O. and other circles, and that is precisely the kind of gremium (Latin for "busom") into which we want you to come to lead this discussion to practical, and useful market results, in respect of all considerations that might be necessary to uphold the ideals behind copyright legislation in its totality.

I have looked into the jukebox exemption amendment rules as they have been put down in the appropriate document. I feel that you have done something which is a reasonable compromise in relation to what I know about your situation. That is my very personal view-I am not representing any government or anything, this is a personal view. I share Mr. Rumphorst's ambiguity-if I may use that word-in relation to what could be found within the broadcasting area. But I should like to refer to further discussion once you have joined. I don't think it would be an obstacle to your joining, and that's my very specific answer to that question, even if I don't go into the details of how a discussion might be performed. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you, Professor Karnell. The Chair would like to recognize Mrs. Möller.

Mrs. MÖLLER. Thank you, Mr. Chairman. Mr. Chairman, in your law I only know two compulsory licenses-that is the license for cable transmission and the license for jukeboxes. I must say, the question, if a license for cable transmission is allowed under the Berne Convention or not, is so highly controversial that really we could not say you could not join the Berne Convention as long as you have a license, because there are countries, now member countries, which have a license. So that should not keep you from joining Berne. On the contrary, you could add in the discussion with your experience and could perhaps give the matter a new incentive. I think this is really not as important as, for example, the moral rights. I must say I am not too fond of the thought that you might join the Berne Convention without having moral rights expressly mentioned in your law.

Now to the jukebox. It's very difficult to read foreign amendments because they refer to acts, to the original act, which you don't know, or which I don't know. If I understand it correctly, you are going to say in your draft bill, HR 1623, that the jukebox compulsory license shall be replaced by an exclusive right, that there shall be negotiations, only if these negotiations fail (I think it's after one year's time), then it shall be the old compulsory license shall come into effect again. Is that correct?

Mr. KASTENMEIER. That is correct.

Mrs. MÖLLER. This is a sensible approach, but I may draw your attention to the fact that, with the threat of one year, or with the benefit of one year for the users, they may say, oh well, why shall we negotiate. They may filibuster and try not to come to a contractual solution, because they know, they'll once again have their compulsory license and that is of course of greater benefit for us probably than a contractual solution. So you have to take care of this consideration, I think, to reach an understanding, and maybe

you could even do this without this network of legal license. In view of the good experiences of all those countries, which have no legal license, it may not be to the benefit of both, to the benefits of the users and the authors. And if we look at the Berne Convention, at Article 11, I do not think that a legal compulsory license is allowed because Article 11 says "authors of dramatic, dramatical musical and musical works shall enjoy the exclusive right of authorizing the public performance of their works, including such public performance by any means or process", and while with the reproduction right, the Berne Convention allows for small exceptions, with musical works, the Berne Convention doesn't allow for small exceptions. And so, from that, I draw the conclusion that a legal license is not allowed under the Berne convention.

That is my answer to your question, Mr. Chairman and Mr. Fish. Thank you so much.

Mr. KASTENMEIER. Thank you, Mrs. Möller. Before recognizing Mr. Dittrich, I would like to recognize Mr. Berman and Mr. Moorhead to embellish on the question that you may desire to respond to. Mr. Berman.

Mr. BERMAN. Thank you, Mr. Chairman. I am still perplexed about the first panel and its relationship to some of the discussions in this last panel on the issue of self-execution. Apparently everyone thinks Berne is not self-executing, except for perhaps Mr. Boytha. And Article 5 says authors shall enjoy, in countries other than the countries of origin, certain rights as well as the rights specially granted in the Convention. Let's say we pass the Chairman's bill, but let's say the jukebox lobby somehow knocks out our change in the jukebox provision (so there is still a compulsory license). Or apparently, just from reading Mr. Kastenmeier's bill, our copyright law does not recognize architectural works; Berne does recognise architectural works, and that provision is knocked out as the bill moves through Congress. And we have now passed a bill, it is signed, it has provisions which people here have said do not comply. The proposition that Berne is not self-executing is the answer. What we haven't talked about here, but was raised in the last couple of comments, is whether you say thanks for coming but you're not let in. You look at our law and say you may have wanted to get into Berne, but you didn't do the job well. Because, otherwise, at that point, what do you do?

Mr. KASTENMEIER. Mr. Director General.

Dr. BOGSCH. I wish to emphasize, Sir, that there is no admission procedure in the Berne Union.

Every country is its own and only judge whether its domestic law is in conformity with the requirements of the Berne Convention. Neither the International Bureau of WIPO nor the other member States are asked for an opinion on that question, and the Director General of WIPO accepts the instruments of accession without examining that question. Thank you.

Mr. KASTENMEIER. Thank you. Mr. Moorhead.

Mr. MOORHEAD. The question I wanted to put along with this same mix of questions is this: it was commented earlier that the United States could keep its same standards of notice for copyright protection for its own nationals, but the protection still would be available for products from other countries, and what my question

was, if we decided to keep our same standards of notice for our own nationals, would this reduce the protection that our nationals would receive in other countries for those particular items under copyright? In other words, if they had not given notice in the United States, would they be given protection abroad, as other countries?

Mr. KASTENMEIER. The Chair will now recognise Mr. Dittrich.

Dr. DITTRICH. First, to the compulsory licenses. I published in Copyright 1982, p. 294 a general study on the interpretation of Article 11bis, para. 1 and 2, of the Berne Convention. I said there that a non-voluntary license, as we introduced in our country is in conformity with the Berne Convention. May I refer, to this publication. I think that the provisions concerning cable retransmission of the bills pending in Congress are in conformity with the Berne Convention.

Turning to the jukebox provisions, it is my view that they are not in conformity with the Berne Convention. But I admit that the counterargument is a very strong one. The Berne Convention, as Madam Möller has said, has no provision in its text concerning the so-called small exceptions, but there exists the famous remark in the report of the Brussels Conference, which has been repeated in Stockholm, concerning the so-called small exceptions. And I suppose that some people would say that the jukebox provision may be qualified as such a small exception, taking into account that payment is made.

As regards the question of Representative Berman, I agree totally with the statement of the Director General of WIPO. There is no admission procedure to become a member of the Berne Convention. No organ of WIPO and/or of the Berne Convention is in the legal position to give a statement whether or not the national legislation is in conformity with the Berne Convention or not. Berne Convention contains Article 33, which provides the competence of the International Court of Justice in the Hague, but as long as this provision has existed, no such procedure has taken place. And I suppose it will be very unlikely that anybody will bring a new act of the United States before this court.

To the question of the Honorable Mr. Moorhead, I think my personal answer is a very clear no. Thank you.

Mr. KASTENMEIER. Thank you, Mr. Dittrich.

The Chair will recognize Mr. Gabay and then following Mr. Gabay, Mr. Rumphorst. And the Chair will urge you, notwithstanding the complexity of the question now presented, to be as brief as possible so that we can conclude in a timely fashion. It is now noon. The Chair will also recognize both Mrs. Del Corral and Mr. Boytha.

And now, Mr. Gabay.

Mr. GABAY. Again, just to reiterate the response given by the Director General to the question of Representative Berman. It's quite clear, in the light of what we have said yesterday, that the Berne Convention is not self-executory by itself, that nobody judges, in fact I have marked this even before your question, nobody would judge a country whether its legislation is compatible or not to the Berne Convention. It is up to the country itself to do it. It might be that this is one of the shortcomings of the Berne Convention and, if