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that withdraws from Berne and adheres to the UCC. The penalty is denial of UCC protection in Berne countries that belong to the UCC. Furthermore, as long as the country remains in the UCC, it would be legally obligated to extend UCC protection to those Berne countries, but it would receive no protection from those states in return. In short, once you join Berne, you cannot denounce your Berne obligations without also losing UCC protection in Berne States. This powerful penalty was necessary to reassure Berne states that the UCC posed no threat to the protection guaranteed by Berne. At the 1971 Berne and UCC Revision Conferences, the "safeguard clause" was amended to allow developing countries to withdraw from Berne without losing UCC protection.

The second half of the "safeguard clause" provides that the Berne Convention shall govern the relations between members of Berne that also belong to the UCC. The UCC cannot be applied in those instances even if its application would result in greater protection for authors than Berne would.

The Berne safeguard clause enabled Berne states (especially the European countries) to become members of the UCC, and they joined to establish multilateral copyright relations with the United States and other non-Berne countries. UCC membership now exceeds Berne membership (79 to 76). In the 52 countries that are members of both Berne and the UCC, the United States enjoys Berne level protection through the front door of national treatment.

II. SUMMARY OF THE 1971 PARIS ACT

The present text of the Berne Convention to which the United States

would adhere is that concluded at Paris in 1971.13/

Apart from the special

13. Accession or adherence to earlier versions is closed; if we join, it must be on the basis of the 1971 Paris version. The previous high tide of United States efforts to join Berne occurred in 1931, when the House passed implementing legislation and the bill died in the Senate because

provisions for developing countries set forth in an integral appendix, the 1971 Act carries forward the generally favorable level of protection previously enjoyed by authors under the Berne Convention.

Ignoring for the time being administrative provisions, the Berne Convention today contains 20 Articles, defining the subject matter of protection under the Convention, setting out points of attachment with the Convention which give rise to the obligation to protect these works, establishing the rule of national treatment and the independence of copyright protection as among the countries of the Union from protection in the country of origin, enumerating certain minimum economic and moral rights of authors with respect to the utilization of their works, establishing specific opportunities to exempt certain uses from the exclusive rights guaranteed by the Convention, setting down special provisions taking account of the unique circumstances surrounding the creation and dissemination of motion pictures, and governing retroactive application of the Convention.

The substantive provisions of the Berne Convention cannot be accurately capsulized in a summary statement. Indeed, the meaning of many of the provisions of the Berne Convention cannot fully be found from a mere reading of the 1971 Paris Act. Copyright treaties simply do not exist in isolation from the domestic copyright laws of states party to such treaties. This is well-recognized in the case of the Universal Copyright Convention (UCC), which contains few specific obligations as to rights, limitations, or the exercise

of a fillibuster on an unrelated issue. At that time, we could have joined on the basis of the 1908 Berlin text. After 1931, that text was closed, and the Rome 1928 version introduced "moral" rights and forbade reservations. Through 1986, these obstacles proved impossible to

overcome.

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or enforcement of copyright.

The UCC stresses instead non-discriminatory

national treatment. It should not be forgotten, however, that the same is true in part in the case of Berne.

The Berne Convention has three general types of provisions: 1) specific rules that guarantee rights to authors and proprietors; 2) rules that establish more general obligations, leaving the details to national legislation within specified limits; and 3) optional rules whose acceptance is left entirely to national law. Absent specific legislation, and depending upon domestic jurisprudence, rules that are susceptible of direct application could be given legal effect by adherence to the Convention. [Article 36]. The range of options open to a member of the

Berne Union in implementing Convendiversity of national legislative

tion obligations is reflected in the approaches within the framework of the Convention. Of the many ambiguous questions surrounding the application of copyright law to new technologies and changes in user and proprietary behavior in the marketplace, Berne may provide few answers on its face and much conflicting practice among the members of the Union. The pendency before the Congress in recent years of bills dealing with cable television and rights associated with "home video" make it desirable for Congress to explore the application of Berne to these issues.

With these caveats in mind, several generalizations about the substance of the 1971 Paris Act of Berne may be offered for more precise analysis.

When referring generally to "literary and artistic works," the Berne Convention means "every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression." [Article 2(1)]. The Convention contains an illustrative listing of such works, "painting," "architecture," "photographic works to which are assimilated works expressed

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by a process analogous to photography," "illustrations," and "three dimensional works relative to geography, topography, architecture or science," to name but a few. As in the United States copyright law, the subject matter of protection under Berne is established with reference to the creative nature of a work, not its medium of expression or any particular technology of fixation. The familiar provisions of section 103 of the United States copyright act concerning the protectability of compilations and derivative works are reflected in Articles 2(3) and (5) of the Berne Convention. Further, the extension of copyright protection to governmental or other official works is subject to the discretion of Union states under Article 2(4) of the Convention. The Convention contains an express provision excluding from the scope of its obligations that of protecting by copyright "news of the day miscellaneous facts having the character of mere items of press information." [Article 2(8)]. The rationale of this provision draws the familiar line between the non-protectability of facts, per se, as opposed to the protectability of particular original expressions of fact, containing "sufficient intellectual effort for them to be considered as literary and artistic works."14/

or ...

The obligations of states within the Union to protect works depends upon certain eligibility criteria being satisfied. Minimum eligibility requirements are specified in Articles 3 and 4 of the Convention. Oversimplifying somewhat, Berne provides that the protection of the Convention applies to the published and unpublished works of authors who are nationals of a country of the Union; and to the works of non-Unionist authors first published

14. Wipo Guide at 23.

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in a country of the Union (including simultaneous publication in a Berne and a For purposes of the first criterion, domiciliaries of

non-Berne country).

Convention countries are treated the same as nationals.

The second criterion, that of first publication in a Berne Union country, is the basis upon which United States works long secured protection in states party to Berne before the creation of the UCC. Our copyright owners have used the device of simultaneously publishing works in the United States and the nearest Berne country market: Canada. This procedure has been

commonly referred to as the "back door" to Berne. The "back door" to Berne is still used in Berne states that are not in the UCC. As noted earlier, the UCC gives us a front door right in 52 Berne-UCC states.

Formalities of a certain kind cannot be applied to works having a country of origin (generally the place of first publication) other than the country where protection is sought. The Convention by its terms does not govern protection for works in their country of origin. Therefore, formalities can be maintained for works in their country of origin.

The Berne Convention contains a number of articles establishing minimum terms of protection, in general and for specific works. As mentioned earlier, the Berne Convention adopted the minimum term of life of the author plus 50 years post mortem as early as 1908; yet, it became a mandatory requirement only in 1948. Special minimum terms of protection are provided for cinematographic works, anonymous and pseudonymous works, photographs and works of applied art insofar as they are protected as artistic works. For motion pictures, the minimum term is "50 years after the work has been made available to the public with the consent of the author, failing such an event within 50 years from the making of such a work, fifty years after the making." The provision as to anonymous and pseudonymous works is structurally similar