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BERNE CONVENTION IMPLEMENTATION ACT OF

1987

WEDNESDAY, JUNE 17, 1987

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE,
COMMITTEE ON THE JUDICIARY,

Washington, DC. The Subcommittee met, pursuant to notice, at 1:30 p.m., in Room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier, Chairman, presiding.

Present: Representatives Kastenmeier, Moorhead, Slaughter, Lungren, Coble, Cardin, Bryant, and Schroeder.

Staff present: Michael J. Remington, chief counsel; David W. Beier, counsel; Thomas E. Mooney, associate counsel; and Audrey K. Marcus, clerk.

Mr. KASTENMEIER. The committee will come to order.
Mr. SLAUGHTER. Mr. Chairman.
Mr. KASTENMEIER. The gentleman from Virginia.

Mr. SLAUGHTER. I ask unanimous consent that the Subcommittee permit the meeting to be covered in whole or in part by television broadcast, radio broadcast, and/or still photography pursuant to Rule 5 of the Committee rules.

Mr. KASTENMEIER. Without objection, the request is agreed to.

Today's hearing is, I think, an historic event. It is the first House hearing on Berne implementing legislation since 1936. The passage of time doesn't diminish in any respect the importance of the subject. And given the current debate over the trade bill, the budget deficit, and the twin needs to promote American creativity and preserve American jobs, U.S. adherence to the Berne Convention is potentially the most important intellectual property issue to be considered by the 100th Congress.

The Berne Convention for the protection of literary and artistic works, as revised in Paris in 1971, is the world's premier copyright treaty. Berne is adhered to by 76 nations, including most of the industrialized world. The United States is not a member; neither is the Soviet Union nor the People's Republic of China.

Copyright touches all Americans in their homes, schools, libraries, workplaces. It directly affects all of us who enjoy books, films, television, music, videotapes, computer programming, software, and other works of arts. Determining the scope of copyright law requires great caution, particularly in a rapidly changing society,

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such as ours, which values the free flow of information and a free marketplace, both domestically and internationally.

When I introduced H.R. 1623, together with Mr. Moorhead, the Berne Convention Implementation Act of 1987, I referred to Berne as a “brooding presence.” Ever since its establishment, 100 years ago, more or less, in 1886, Berne has lurked in the background of U.S. copyright legislation. When Congress and this Subcommittee drafted the Copyright Reform Act of 1976, we also, at that time, had an eye on Berne.

In facts and certain particulars, the life of the author plus 50, the 1976 Act really conformed to Berne.

Although 11 years have passed, and rather quickly, since the 1976 Act, this is still an unresolved question, U.S. adherence to Berne. In order to focus debate, I have introduced this bill, H.R. 1623, which permits the United States to adhere to Berne through the front door. We should enter, however, only if, after full hearings and debate, Congress determines on balance that Berne adherence serves the needs of the country and its citizens. The initiative seeks to raise all of the questions that must be asked for the fullest range of private and public interests to be aware of what Berne adherence will mean now and would mean tomorrow.

Without objection, I would insert the text of H.R. 1623, together with my explanatory floor remarks in the appendix of the hearing record. See Appendix I. And I would also ask, without objection, to insert in the appendix the text of the Berne Convention known as the Paris Act. See Appendix II.

Mr. KASTENMEIER. The record should reflect that the United States has chosen not to join the Berne Union in the past, presumably because we did not want for our society the kind of copyright laws that the Convention requires. Due to the growing internationalization of copyright law, the trade imbalance, and so forth, we doubtless have a growing consensus for a contrary decision.

The purpose of this initial hearing is to establish a body of knowledge about Berne. The Subcommittee will try to identify areas of agreement and disagreement about Berne and changes to American copyright law necessary if we decide that adherence is in our best interests.

Before introducing the first witness, let me indicate to my colleagues, the press and the public the Subcommittee's tentative schedule on Berne implementation legislation. I would expect a number of hearing days to be in order. Some hearings, such as today's, would be general in scope; others would be more narrowly delineated or focused, and would examine specific issues such as moral rights, the jukebox compulsory license formalities, architectural works. An examination of the administration of the Berne Union by the World Intellectual Property Organization will also be addressed. Finally, the views of European and Third World Countries on Berne questions would also, of course, be in order.

I assume the next hearing would be in mid-July, and it specifically would focus on the subject of Berne and moral rights.

I would like to lastly recognize the efforts of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, the members of which have given freely of their time to examine and offer answers to the many issues we will be examining even this afternoon. The Ad Hoc Group's report will be mentioned during the testimony, and I want members to be aware of it. I expect representatives of the Ad Hoc Group and the Administration to testify in the future.

Now, I would like to defer to the gentleman from California, cosponsor of the legislation, Mr. Moorhead.

Mr. MOORHEAD. Thank you, Mr. Chairman.

When we introduced the legislation which is the subject of these hearings, we didn't have any preconceived notions on how to solve some of the more difficult problems. But what we did have in mind is that if these problems can be worked out, it would be in the better interest of the United States to join the Berne Convention.

The only way to determine whether these problems can be worked out is to begin the debate, and that is why this bill was introduced, and that is why we are having these hearings today.

In 1976, the comprehensive revision of the U.S. copyright law brought our law very nearly in compliance with the Berne Convention. When that rewrite was occurring, Barbara Ringer, the Register of Copyrights, made it clear that the primary reason for some of the changes was to enable the U.S. to join Berne.

The United States international copyright relations are governed by the Universal Copyright Convention, which is administered by UNESCO. In 1984, the U.S. withdrew from UNESCO and lost its voice in the influencing of UCC activities.

I believe the time is ripe to consider joining the Berne Convention. The Cabinet Council on Commerce and Trade unanimously recommended Berne adherence as an important international intellectual property objective.

President Reagan endorsed this recommendation. I believe that this is important legislation. Because of its nature, it is not going to become law unless the White House, the Departments of State and Commerce and the Copyright Office, along with the private sector, make a concerted effort to really push its enactment.

A year ago, some of us on this Committee had the opportunity to meet with Arpad Bogsch, who is the Director General of WIPO. And he very much wants this country to join the Berne Convention, and feels that it would not only be in our best interests but in the best interests of the other countries that belong, and bring in a more objective and a more effective protection of copyrights throughout the world.

Thank you, Mr. Chairman.
Mr. KASTENMEIER. I thank my colleague.

Our lead off witness-we have two witnesses today-is the Register of Copyrights, Ralph Oman, who is a friend and familiar face to this Subcommittee.

Mr. Oman became Register in the fall of 1985, and has done an excellent job ever since. The quality of his work is manifested in the superb statement which he is soon to present to the Committee.

The statement is, however, 81 pages long, and he is going to read every word of it. I would suspect that you would want to submit the statement and any appendices for the record.

On the other hand, I must say that I would hope, Mr. Oman, that your oral remarks do encompass much of what you have included in your prepared statement because I think, for historical background and for an analysis of the issues, it would be unfair to those who hear you this afternoon not to present this, as much of it as will be necessary to communicate the substance of it.

That being the case, I would say that assuming that the oral presentation will be longer than usual, I would say that my colleagues, and I am sure that Mr. Oman would not object, should feel free to interrupt the witness for clarifications or whatever, other than eliciting long policy statements.

Mr. Oman is accompanied at the witness table by Dorothy Schrader, the General Counsel of the Copyright Office. Of course, Ms. Schrader is one of the Nation's leading copyright experts and has been of enormous assistance to the Subcommittee over the many years.

In any event, we welcome you both. Mr. Oman, you may proceed as you wish. STATEMENT OF HON. RALPH OMAN, REGISTER OF COPYRIGHTS; ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSEL

Mr. OMAN. Thank you very much, Mr. Chairman. And we will in fact give a brief summary of the 80-odd page document.

It is a privilege to appear here today, as always, and we will be talking about the Berne Convention and your bill and Mr. Moorhead's bill, H.R. 1623.

H.R. 1623 would reconcile the various competing interests in this country and attempt to come to grips with the most important international copyright issue that the United States has had to consider in this century.

The bill is a tribute to your tireless efforts and Mr. Moorhead's tireless efforts in the field of copyright. The issue, as you mention in your statement, Mr. Chairman, isn't new. Berne adherence and the necessity of implementing legislation were extensively debated and considered in the twenties and thirties.

Your interest in these hearings, which you just outlined, will give interested parties the chance to answer all the many unanswered questions.

In these oral remarks, I can only touch on the highlights of the Berne Convention and briefly note the reasons for and against adherence.

First, let me look at the history of the Berne Union. It was created in 1886, after 28 years of study. It contains two basic principles that are still central to the Berne Convention.

First, the concept of a Union. The contracting states constituted themselves into a Union for the protection of the rights of authors in their literary and artistic works. It incorporated the principle of national treatment. One of the major advances made in the 1886 Convention was the adoption of the idea that authors who are subjects or citizens of any of the countries of the Union should enjoy in all other member countries the same protection for their works as they do in their own country. This is the principle of national treatment.

During 100 years of existence, the Convention has been revised five times to accommodate new technologies and new provisions of

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copyright protection. And each provision has generally improved or extended the rights given to authors.

Mr. KASTENMEIER. May I interrupt you just to ask a question. From your brief on historical treatment in 1886 it would seem that the principal advocates of the Convention were authors in the context of writers, such as those who write novels and, let's say, nonfictional works.

Were there other proprietors, that is owners or creators of copyrighted works, who were instrumental in pressing for Berne at the outset?

Mr. OMAN. Certain publishers, those who published works in this country by American authors were interested in the issue. Certainly that was true in other countries as well.

In terms of other media, the initial studies were limited to the traditional copyrighted works, books, magazines, poetry.

I will check with Ms. Schrader on the other subject matter jurisdiction.

Ms. SCHRADER. As Mr. Oman has said, we are speaking basically of the middle of the 19th century, 1858, when the efforts were really begun and culminated then 28 years later in the Berne Union. At that time, of course, it was the traditional type of subject matter, books, similar printed works, and perhaps music that would have been the focus of protection.

Later, the French became very interested in protecting photographs because they considered they did develop the art. But it was very much a traditional type of subject matter.

Mr. OMAN. I guess engraving would have been one of the original items protected also under the Convention.

But it was primarily prompted by the efforts of individual authors. Victor Hugo was prominent amongst them, as was Charles Dickens. If this hearing were being held back then, we would have a room full of authors rather than a room full of lobbyists.

The divergence occurred between U.S. law and the Berne Convention as a result of the 1909 Act, which set us down a path which took us apart for almost 70 years.

The 1909 Act pursued several policy lines that were distinctly at odds with the major provisions of the Berne Convention. This debate in Washington in 1909 offered a different approach to copyright, one based on formalities, and one in which the author enjoyed a significantly shorter term of protection.

The paths would not converge again until, as you mentioned, the 1976 Copyright Act was passed, an Act in which you, Mr. Chairman, played the key role.

Let me mention some of those changes that you made back in 1976 that brought us to the brink of Berne conformity. They were all battle royal compared to the changes proposed in H.R. 1623.

Mr. Chairman, you have already mentioned the fact that the term of the copyright life changed to life of the author plus 50 years. You also grappled with the issue of copyright liability for cable television and juke boxes, and imposed liability on both.

Third, automatic copyright from creation rather than from publication was begun.

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