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United States Department of State

Washington. D.C. 20520

July 7, 1988

Dear Mr. Chairman:

I am writing in response to your letter of June 21, 1988 to Secretary Shultz regarding United States contributions to the World Intellectual Property Organization (WIPO) with particular reference to U.S. contributions arising out of our proposed adherence to the Berne Convention for the Protection of Literary and Artistic Works.

I am pleased to inform you that, in spite of our appropriation shortfall, our FY 1988 obligations to WIPO have been met. In this connection, we have paid approximately $423,000 to the Paris Union, $37,000 to the Nice Union, $203,000 to the Strasbourg Union and $125,000 to fulfill our obligations to the Patent Cooperation Treaty. We are, however, in arrears to WIPO for approximately $288,000 resulting from Gramm-Rudman-Hollings withholdings in fiscal year 1986 and appropriations shortfalls in fiscal years 1985 and 1987.

As you have noted, the Administration strongly supports U.S. adherence to the Berne Convention. We agree unreservedly with your statement on May 10, 1988, when you introduced the Berne Convention Implementation Act of 1988, that this convention is "the most important copyright treaty in the world". Evidence of the outstanding preparatory work regarding the legislation carried out by you and your Subcommittee is the unanimous vote of approval in the House. The Department would like to take this opportunity to express our appreciation for your leadership on this issue.

Assuming accession to the Berne Convention by the end of 1988, our assessed contribution of $245,000 for calendar year 1989 would be due on January 1, 1989. In anticipation of accession to this Convention, we requested funds in both fiscal years 1988 and 1989.

The Honorable

Robert W. Kastenmeier, Chairman,

Subcommittee on Courts, Civil Liberties, and

the Administration of Justice,
Committee on the Judiciary,

House of Representatives.

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In regard to our current arrearages to WIPO, we continue to recognize our international legal obligations and I hope, when the budgetary climate permits, that all parties concerned will be able to work out a favorable method for dealing with this issue. However, the present budgetary situation makes it difficult for us to fund fully even our current assessments.

The Budget Summit Compromise placed overall constraints on the Administration's FY 1989 budget requests. The two percent increase for the Contributions to International Organizations account is in line with these overall constraints. In light of this situation, we did our best to allocate the limited funds in a way which will best serve U.S. interests. We are cognizant of the important role of WIPO and consequently are requesting full funding for this organization in FY 1989.

Let me express my appreciation for your concerns. We look forward to working with you and other members of Congress on the challenge we face in assuring that the U.S. continues to have a strong position in WIPO and other international organizations as well.

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Between the two World Wars it became gradually clear that there was no longer any real hope that the then existing conventions of the Berne Union' would become global in

The views expressed herein are the views of the author and not necessarily those of the U.S. Copyright Office.

texts:

Before World War I the Berne Union adopted the following

Berne Convention, Additional Article, and Final Protocol (1886).
Paris Additional Act and Interpretative Declaration (1896),
Berne Convention (1908),

141

142

U. C. C. ANALYZED

their geographical coverage, and that if a truly universal convention was desired, only a new convention could meet such a desire.

The recognition of this situation, however, raised an important question: should the new convention be a revision of the latest Berne Convention (and thus replace the latter)2 or should it be a convention outside the Berne Union (and consequently co-exist with the different Berne Conventions).

The history of the efforts to establish a new convention shows that the dilemma was a real one and that the Rome Revision Conference-which made the first official move in this respect-was far from indicating a clear solution. The famous voeu3 which was adopted by the said Conference,

Berlin Additional Protocol (1914),

Rome Convention (1928);

to which the latest conferences of revision, held shortly after World War II added the:

Brussels Convention (1948).

Not all the countries members of the Union are bound by the same texts (cf. 1955 Le Droit D'Auteur 1).

References in this article to "the Berne Convention" should be understood as references to texts, or portions thereof, which are actually applied between the countries considered.

References to the "Convention of the Berne Union" or "Berne Conventions" should be understood as references to any or all of the above texts.

2 Cf. Article 27, par. 1 of the Brussels Convention stipulating that it "shall replace, in relations between the Countries of the Union, the Convention of Berne of the 9th of September 1886, and the subsequent revisions thereof." Analogous provisions are stipulated in the Rome Convention (Article 27) and in the Berlin Convention (Article 27).

3 The text of the voeu, unanimously adopted by the Rome Conference on June 1, 1928, is the following:

COEXISTENCE WITH BERNE

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and which is generally considered as the seed from which the Universal Copyright Convention ultimately grew, is extremely vague when it comes to recommending solutions. On the one hand it invites the American countries to accede to the Rome Convention, while on the other hand it invites all interested governments to work out a general agreement (entente générale) based on the similar rules of the Rome and Havana Conventions and aiming at the world-wide unification of the laws protecting intellectual creations. Whereas the invitation to accede to the Rome Convention necessarily presupposed the continued existence of that convention, the reference to a general agreement probably was intended to mean a new convention, without specifying, however, whether the general agreement would or would not replace the latest of the Berne and the Pan American Conventions.

"The Conference,

"In view of the identity of the general guiding principles of, and the ends aimed at by, the Convention of Berne, as revised in Berlin and later in Rome, and the Convention signed by the American States in Buenos Aires in 1910, and later revised in Havana, in February of 1928;

"And in view of the manifest agreement between the majority of provisions of the two Conventions;

"Expresses the wish (voeu), in conformity with the suggestions made by the Delegation from Brazil and the French Delegation, that, on the one hand, the American Republics which are signatories of a Convention to which non-American States cannot adhere, shall accede, in accordance with the example set by Brazil, to the Convention of Berne as revised in Rome; and on the other hand, all the interested Governments shall cooperate with a view to preparing a general agreement which shall have as its basis the similar rules of the two Conventions and as its object the world-wide unification of the laws protecting the creations of the spirit."

(ACTES DE LA CONFERENCE REUNIE A ROME, published by the
Berne Bureau, page 350; English translation from Ladas, THE
INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROP-
ERTY 650 [1938].)

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