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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 1lbis, 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 sup pose 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
the United States joins the Berne Convention, this is one aspect that could be amended, because, as you know, one of the reasons that the United States has initiated the GATT proceedings is the lack of enforcement. So this is one aspect of enforcement, and it might be that the procedure of the International Court of Justice is not sufficient in that respect, and one could think in terms of another body that could enforce the provisions of the Berne Convention. But anyway, as it stands now, only the country itself would judge whether its legislation is compatible or not to the Berne Convention.
Now, with respect to the question of formalities. I must say that when Mr. Tarnofsky proposed and suggested that the United States may maintain the notice or other formalities with respect to its nationals, I had some, I would not say doubts but, uneasy feelings. I think that, formally, it might be correct to say so, because no other country would argue that the United States would be in the breach of its international undertakings because it affects only its nationals and not nationals of other countries. However, in light of the very clear provision in Article 5, I would say that such a distinction would not be in line with the spirit of the Convention. So that, unlike the other proposals, for instance, to maintain, formalities and notice as a presumption of evidence, would be entirely in line with the Berne Convention, and I think that would be a useful provision. I know myself, when I was the Head of the Patent Office, from time to time, authors in Israel wanted to have some form of voluntary registration, because this was lacking in the system, because they wanted really to reaffirm their authorship. So I think that this would be in line and would be even useful, but to make the distinction between nationals and foreigners, while formally it might be in line with the Convention, although this can be argued, I don't think that it would be a good, if I may say so.
Now, as you could see, the question of interpreting the Convention, as we are here a number of experts and there are a number of questions, there have been a number of views, including the question of compulsory licensing. So, I think that it will be up to the United States to accept one or the other views with respect to compulsory licensing. It is my view that, with the exception of the jukebox case, all the other compulsory licenses that were proposed are in line with the Convention.
Mr. RUMPHORST. Thank you, Mr. Chairman. I would like to address once again this question of self-execution or not. I think Mr. Berman, what was said yesterday was slightly different. I think we said it is not for Berne to say whether Berne is self-executing or not. It is for national constitutional law to decide that question. So we cannot address it. It is up to your law. You must see whether, under your constitutional system, this Convention is the type of convention that would be self-executing or not in your country. I believe to know that you do recognize that there are international conventions which are self-executing. I also believe to know that you would recognize that certain parts of a convention may be selfexecuting, whereas others are not, and that a criterion is, well, is a particular provision of a convention directly enforceable or not, or do we need implementing legislation for that? And if that is correct, then I would once again, as I did yesterday, refer to article 5, which says very clearly, the authors, foreign authors, shall enjoy the protection that your legislation grants, and then I quote: "as well as the rights specifically granted by this Convention," and there are rights which are specifically granted. So, without wanting to interfere in any way with the interpretation of American constitutional concepts, I would personally imagine that you might come to the conclusion: indeed, these are rights which are specifically granted and which are clearly defined. To that extent, the Convention would be self-executing under your U.S. system.
Mr. KASTENMEIER. Thank you, Mr. Rumphorst. May we briefly hear from Señora del Corral.
Mrs. MILAGROS DEL CORRAL. Thank you, Mr. Chairman. Concerning the question put forward by Representative Moorhead about formalities, on the impact of protection on your nationals outside if you maintain formalities for U.S. authors. Eventual impact aside, I can inform you that this situation was in force in Spain but has now been abolished. We had compulsory registration, in our country for our nationals, but this had no impact in their protection outside. So this is not a fear you should have. It should only be thought of at the national level because it is a penalty for your authors in your own country. You are going to protect foreign authors without any formalities and you oblige your own authors to respect certain formalities, to comply with the law. But, it is up to you of course to do so.
Concerning the other points, for example retroactivity, I will not repeat what I said yesterday, Mr. Chairman, because I know it has been recorded and it is too late to begin once more. But I would like to given an opinion about the observation that there is no "admission process" in the Berne Union, as the Director General very well said. You should also, we all should, take into consideration that it is not the same if the U.S. is entering the Berne Union or if, let's say, another country is deciding to join the Berne Union. It is, of course, very important that when such a step is taken by the United States, everything should be seen very carefully to avoid problems in other Berne countries, which are not allowed to say anything and must comply with the obligations as member States vis-à-vis the United States after their adherence. This is just a matter for reflection concerning retroactivity.
Thank you, Mr. Chairman.
Mr. KASTENMEIER. Thank you, Señora Del Corral. And now briefly for a concluding remark, Mr. Boytha.
Mr. BOYTHA. I should like to respond to the kind allusion made by Mr. Berman to my statement concerning the question of the self-execution of Berne. I conceived my statement fully as it was clarified now by Mr. Rumphorst and, in order to avoid any misunderstanding, I should read one sentence of the report of the Paris Conference for the Revision of the Berne Convention which, in this context, stated the following: "it was understood that in countries, according to the constitution of which treaties were self-executing, no separate legislation was necessary to implement those provisions of the Convention which, by their nature, were susceptible of direct application." That is to say there are rules in the Berne Convention which might become self-executing, without separate domestic legislation, provided that the applicable constitution rendered them self-executing.
Thank you very much. Mr. KASTENMEIER. Thank you, Mr. Boytha. This concludes the formal part of our two-day proceeding in which you have been so good as to participate. We have learned a great deal. This has not been an idle endeavour on our part. We have, I think, come to understand at least the expectations of our country in terms of its adherence to Berne, potentially, and to better understand also the issues that still remain for us to resolve. Today in our country, it is a national holiday; it is a day of Thanksgiving, we call it. If we were in our own country, we would not be working today. But we are here, and our thanks, our "thanksgiving", really is to you. We are pleased and proud to be representing our country in this distinguished setting with those of you who have contributed to our understanding of the Berne Convention.
I would, at this moment, like to present to Dr. Bogsch a gift on our part. We note that he has, in the outer chamber, a piece of the moonrock. Well, I would like to present Dr. Bogsch a pen from the Library of Congress; we call it a space pen. This is part of our new technology and it is a token of our esteem and very deep appreciation. He has largely deferred so that others could speak here. His presence is with distinction noted and we are grateful for his hospitality on behalf of the World Intellectual Property Organization and on your behalf as well.
Dr. BOGSCH. Thank you, Sir. Thank you very much. Thank you also for the space pen.
Mr. KASTENMEIER. Also, Dr. Bogsch, I would like to indicate that Congressman Moorhead, and myself, on behalf of our delegation, would like to present a certificate of appreciation to each of you as participants. It is something other than words itself. It is an indication of the fact that we not only appreciate but highly value your contributions. The hour has arrived when we conclude this symposium, perhaps we can call it that, and our very best wishes and thanks to you all. This conference stands adjourned.
[Background information on specialists follows:
BACKGROUND INFORMATION ON THE SPECIALISTS INVITED TO PARTICIPATE IN THE ROUNDTABLE DISCUSSIONS ON UNITED STATES ADHERENCE TO THE BERNE CONVENTION
SPECIALISTS Mr. Shahid Alikhan (Panel 1), Director, Developing Countries (Copyright) Division, World Intellectual Property Organization (WIPO), Geneva, Switzerland.
Mr. György Boytha (Panel 1), Director General, Hungarian Bureau for the Protection of Authors' Rights, Budapest, Hungary.
Mr. Jean-Louis Comte (Panel 3), Director, Swiss Federal Intellectual Property Office, Berne, Switzerland.
Mrs. Milagros Del Corral (Panel 2), Secretary General, Spanish Federation of Publishers Associations, Madrid, Spain.
Prof. Dr. Robert Dittrich (Panel 4), Ministerialrat, Federal Ministry of Justice, Vienna, Austria.
Mr. Mayer Gabay (Panel 1), Commissioner of the Civil Service, Ministry of Fi. nance, Jerusalem, Israel.
Mr. Roland Grossenbacher (Panel 3), Deputy Director, Swiss Federal Intellectual Property Office, Berne, Switzerland.