case of the works originating in the United States, there was no relief at all-whatever rights they had simply weren't recognized.

As I say, I will have to provide the details on that for the record, and there may well be other cases.

[The details follow:]

TRANSFER OR WAIVER OF MORAL RIGHTS

UNDER THE BERNE CONVENTION

The Berne Convention leaves to the laws of its member countries the determination whether moral rights may be transferred or waived. As we show below, this conclusion is borne out by the language and history of the Convention itself, the opinions of experts and the practices of Berne member countries.

I. Under the Convention Text and the WIPO Guide, Transfer or Waiver of Moral Rights Is Left to the Laws of Berne Member Countries

Article 6bis, paragraph (1) of the 1971 Paris Act of

the Berne Convention* provides as follows:

Berne Convention for the Protection of Literary and Artistic Works of Sept. 9, 1886, completed at Paris, on May 4, 1896,

Footnote continued

Independently of the author's economic
rights, and even after the transfer of the
said rights, the author shall have the right
to claim authorship of the work and to object
to any distortion, mutilation or other
modification of, or other derogatory action
in relation to, the said work, which would be
prejudical to his honor or reputation.

Although the language "after the transfer of said

rights" might suggest that moral rights cannot be transferred or waived,

literally construed this provision simply
means that the transfer of economic rights
does not in and of itself include the
transfer of moral rights and does not neces-
sarily mean that moral rights themselves are
incapable of transfer.

Nimmer, "Implications of the Prospective Revisions of the Berne
Convention and the United States Copyright Law," 19 Stan. L.
Rev. 499, 524 (1967) [hereinafter cited as "Nimmer"]; accord
Stewart, S., International Copyright and Neighbouring Rights
$4.21 (1983) [hereinafter cited as "Stewart"].

Footnote continued

revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, and revised at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1967, and at Paris on July 24, 1971, effective July 10, 1974, reprinted in 7 Copyright 135 (1971).

The official commentary by the World Intellectua

Property Organization ("WIPO"), which serves as the Berne secretariat, indicates that this provision need not be construed to prohibit alienability, and Register of Copyrights Ralph Oman so testified before this Subcommittee on June 17, 1987. Statement of Ralph Oman, Register of Copyrights, before the House Subcommittee on Courts, Civil Liberties and the Administration of Justice, House Judiciary Committee, 100th Cong., 1st Sess., June 17, 1987, at 40. Indeed, the WIPO commentary concerning Article 6bis paragraph (1) states:

Note that the moral right exists "indepen-
dently of the author's economic rights" and
even "after the transfer of the said rights".
This protects the author against himself and
stops entrepreneurs from turning the moral
right into an immoral one. Indeed some laws
expressly lay down that the moral right
cannot be assigned and that the author may
not waive it. However, on this point, too,
the courts have some freedom of action.

WIPO, Guide to the Berne Convention For the Protection of Literary Works (Paris Act, 1971) (1978) [hereinafter cited as "WIPO Guide"] at 42 (emphasis added).

Thus, it seems clear

that the Berne Convention contains no strict prohibition against transfer or waiver of moral rights, else the statement that courts "have some freedom of action" has little meaning.

Moreover, the legislative history of Article 6bis,

paragraph (1) provides persuasive evidence that the Convention does not prohibit transfer or waiver of moral rights. According to E. Piola Caselli, the Rapporteur Général of the 1928 Rome Conference (at which Article 6bis was first adopted), the terms of paragraph (1) mean that the moral rights are not automatically transferred with economic rights, not that they are incapable of transfer. Nimmer, supra at 524 (citing Caselli, Correspondance, 1935 Le Droit D'Auteur 67).

Caselli's report of the Conference confirms that in adopting the provision, the Conference intended to leave the issue of transfer or waiver of moral rights to the laws of its individual member countries. Id. (citing Bureau De L'Union Internationale Pour La Protection Des Oeuvres Littéraires et Artistiques ("BIRPI"), Actes de la Conference Réunie à Rome du 7 Mai au 2 Juin 1928, at 202 (1929)). Finally, at the Brussels Conference in 1948, France offered a proposal to make moral rights inalienable.

That proposal was rejected. Id. (citing BIRPI, Documents de la Conférence Réunie à Bruxelles du 5 au 25 Juin 1948 (1951) at 97). Accord Stewart, supra at $4.21.

Finally, the freedom of action allowed to individual member countries in enforcing moral rights generally is reflected throughout the balance of Article 6bis. (2) provides as follows:

Paragraph