29 of appropriate identifying material, and these deposits represent the principal copyright law source for additions to the Library of Congress' collections. Since noncompliance with the mandatory deposit requirement of the present law does not result in a forfeiture of any aspect of copyright protection, the present deposit system does not constitute a prohibited formality under the Berne Convention. The Ad Hoc Working Group agreed with this position.33/ Whatever the practices of Berne states as to the kinds of materials that are subject to mandatory deposit for the benefit of national libraries, United States entry into the Berne Convention ought to provide the occasion for our country to affirm the right and the social duty of national libraries to acquire, preserve, and make accessible to all, the material expressions of national cultural life. The carrying out of such a function in the 20th and 21st centuries cannot be limited to "printed publications" any more than a nation's culture and communications can be confined to the printed page. Reasonable accommodations with rightsholders so as to avoid undue economic burdens, particularly those which might arise out of a multiplicity of national deposit requirements, have and can continue to be agreed upon, as should arrangements to mitigate the consequence of mandatory deposit systems upon rightsholders in particularly expensive or limited edition type materials. The Library of Congress would expect, of course, to have the opportunity to be heard in connection with particular proposals in the nature of implementing legislation that would have the effect of reducing the probability of timely and comprehensive acquisition through copyright of the range 33. Ad Hoc Working Group Report at 566. - 30 of materials any national library in a democratic society should be preserving. In this connection, we would call the Congress' attention to the fact, as briefly noted earlier, that the acquisitions of the national library through the copyright system have long rested upon the registration of claims to copyright, accompanied by an archivally acceptable deposit, rather than through the cumbersome and expensive enforcement proceedings of mandatory deposit. Alterations in the role of registration, in the inducements to timely registration, and in the legal effects of registration, could have the unintended effect of badly disrupting the systematic acquisition activities of the Library of Congress. The Library of Congress nonetheless realizes that the interests of U.S. international trade, the interests of authors and rightsholders, and the interests of users of copyrighted works all over the world, might be well served by the entry of our nation into the Berne Convention. We will of course work in a spirit of goodwill with Congress, rightsholders, and library organizations in this matter. - The Copyright Office recommends that the following points be addressed in any amendment of 17 U.S.C. $407: 1) any point of attachment for mandatory deposit in lieu of the notice must be constitutional; 2) strong enforcement provisions must be retained; and 3) works in all formats must be covered that is, the mandatory deposit requirements should not be limited to printed publications. The deposit provisions of H.R. 1623 are satisfactory to the Copyright Office. We urge, in addition, that any report accompanying the bill include a congressional finding that mandatory deposit of all published works advances the purposes of the Copyright Clause of the Constitution to promote the progress of science and the useful arts, and that Congress considers mandatory deposit, although not a condition of copyright protection, one element of the "quid pro quo" paid by authors and copyright owners for the privilege of receiving copyright protection. 4. Renewal Registration. Accommodating the present renewal provision of the United States copyright law may constitute a most thorny problem should the United States adhere to the Berne Convention. The legal incompatibilities involve both the prohibition against formalities and the minimum term of protection. The practical problems of changing a provision upon which generations of copyright contracts have been concluded are conceptually immense. The current United States copyright law provides that any copyright in its first term of statutory protection on January 1, 1978 (the date when the general revision of the copyright law took effect), must be the subject of a renewal registration in order to secure a further term of 47 years. Unless renewal registration is made in the last year of the 28-year term, copyright protection terminates at the end of such term. Since failure to register causes loss of protection, the renewal provision, as applied to works whose country of origin is another Berne state, conflicts with Article 5(2). The Ad Hoc Working Group reached the same conclusion.34/ In addition, it is possible that even as applied to United States nationals and works first published here, the renewal provision may conflict with the minimum term required by Article 7. It was estimated that when the current United States copyright law went into effect there were at least 6.6 million copyrights subsisting: approximately 6 million were in their first term. 35/ Many existing contracts 34. Ad Hoc Working Group Report at 58. 35. Sen. Rep. No. 473, 94th Cong., 1st Sess. 122 (1975). - 32 were made on the basis of renewal expectancies, and Congress decided in 1976 that it would be unfair and cause considerable confusion to cut off or alter these interests.36/ Under the present system, renewal registrations will have to be made until the year 2005. B. Non-Formality Questions. In this part of our statement, the Copyright Office will attempt to identify and briefly analyze most of the important non-formality questions. Not all are of equal importance nor is the likely or potential conflict as clear in all cases. Many points are subject to interpretation or require further study. By mentioning them, the Copyright Office is trying to assist full public discussion, as the Congress considers United States adherence to Berne. 1. Self-Executing Provisions. One question which implicitly underlies much of the historic and present discussion of the issues involving possible United States adherence to Berne is whether (and if so, to what extent) Berne's provisions are self-executing, i.e., whether they become the law of the land upon ratification of the treaty, in the absence of separate implementing legislation. Article 30 asserts that ratification or accession shall automatically entail acceptance of all the provisions and admission to all the advantages of the Convention. Article 36(1) provides that a member "undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention." The explanation in the WIPO Guide is not conclusive: "What those measures are depends on the 36. Id. and H. R. Rep. No. 1476, 94th Cong., 2d Sess. 139 (1976). constitution of the country in question: in some it becomes part of the law. of the land; in others parliament must pass laws to give effect to the Convention's obligations."37/ The standard reference work addressing the question also provides no dispositive answer. It states that a treaty made on behalf of the United States in ... While Article 36(1) of Berne contains the undertaking set out above, Article 36(2) states that It is understood that, at the time a country becomes Determining what provisions of Berne are intended to be selfexecuting, where the constitutional law of a Union state admits of selfexecuting treaties, is a question which calls for very close study by the Congress. What is at stake in our system is the amendment of our copyright law by a treaty. This should not be allowed to occur by inadvertence. The question which must be answered is whether a provision of the Berne text "manifests an intention that it shall become effective as domestic law," and thus be self-executing, or whether it does not manifest that intent |