place, if that were the situation, what would you recommend as a path to follow? That is, as recommended, it might be referred to the Copyright Office for a recommendation. Other recommendations are we give it to a commission, as we did in the case of software, computer software, to report back for some possible implementing legislation, separate, of course, from the adherence to Berne, but certainly affecting domestic law, or whether we should look at it in a more comprehensive context with design legislation generally rather than just specifically architectural legislation.

What would be your recommendations if the committee elected not to include it in the text of the adherence to Berne?

Ms. RINGER. Well, all your alternatives have merit, Mr. Chairman. There is a problem in giving it only to the Copyright Office, since it would have to study much more than it did in the section 108 situation, how an existing law is working. I guess the Copyright Office could actually go out to the interest groups and try to evolve legislative proposals and reactions to them and so forth. I guess that's a possibility if you give them a mandate and support. I think there are certainly pros and cons with respect to a national commission, like CONTU, which did, in fact, perform a very valuable function. I think when the crunch came, it was as responsible as anything else for the compromise that was reached on library photocopying. But commissions like that are very, very expensive, and whether the issue at this point is ripe enough to justify establishing a full-scale commission is a question. You've had a terrible time in getting people to come out and talk to this point, I gather--

Mr. KASTENMEIER. Actually, that's true. That is one of the reasons I guess the committee probably here and in the Senate didn't really spend that much time with the architectural question. We didn't really have advocates. The AIA was not a proponent of change and did not come forward and press us, saying that it would be useful to do this. We didn't get, therefore, any counterreaction. It was sort of left hanging there as something which, as a proposal, was in an area in which some movement with respect to adherence to the spirit of Berne seemed to be indicated. But we did not, frankly, get the sort of input that was necessary to confront all aspects of the question early enough, I suspect.

Ms. RINGER. Your third suggestion was for hearings, which I guess I probably would come out at as somewhere between the other two-Copyright Office or the national commission. I would probably come down in favor of that, although the other two are certainly viable. I do think you need to do something; I would agree with that.

I don't know what your plans are for design legislation hearings, but it would seem to me that would be a logical place to at least make a first cut at the problem. It would be worse to try really very hard to bring out everybody that might be concerned, so that they knew what was going on and had some real input into the right and the limitations that are being proposed.

Mr. KASTENMEIER. Thank you, Miss Ringer.

I would now like to yield to the gentleman from California, Mr. Berman.

Mr. BERMAN. I was wondering if you could answer, Ms. Ringer, the same question that I put to Professor Goldstein: what in existing U.S. copyright law justifies the conclusion that we don't need to make any change in that law to comply with or to be in conformance with or be in the spirit of Article 6(bis)?

Ms. RINGER. There is a large body of jurisprudence which, as Professor Goldstein suggested, has a common law base which involves a rather amorphous bundle of rights, if you would want to call it that, rights that include rights of privacy, rights of publicity, and in some cases just common law recognition of rights like unfair competition, unjust enrichment, libel, and so forth. It's all evolving. There has been lively litigation over Elvis Presley's stuff, and some of that is definitely in the moral rights area. There is quite a body of case law on this subject.

I think that out of that you can draw a very firm conclusionthat there are rights analogous to moral rights and that they go beyond traditional authors but include performers as well. But they are definitely recognized on grounds of equity or of right and wrong by the common law courts.

Mr. BERMAN. Are any of them rights that would accrue to an author vis-a-vis a copyright holder?

Ms. RINGER. It would depend on the circumstances, which you did discuss with Professor Goldstein, as to whether or not there was a contract and how that contract would be interpreted and whether or not there was a work made for hire arrangement.

I happen to believe-and I might as well state it very bluntly— that these rights are and should be alienable, and that it would really bollix up the whole process if you didn't make them alienable. I think that that would be consistent under Berne. There's no need for me to go through all the rigmarole on that, but I really feel that way.

Mr. BERMAN. But you don't even think to be consistent with Berne we need to deal with this in the first place?

Ms. RINGER. In fact, I think it would be a mistake to.

Mr. BERMAN. So you would suggest removing those sections of the Chairman's bill that create in authors a right to object to distortion or mutilation?

Ms. RINGER. That's right, because I think that right exists now, and by stating it and then cutting it off at certain points, you might be preempting the evolution of other laws, it seems to me. Mr. BERMAN. I forget where, but I thought we heard testimony about famous paintings that somebody would decide to cut up into little one-inch square

Ms. RINGER. Yes, there are lots of those cases. There are some cases that cry out for relief.

Mr. BERMAN. I mean, does existing law provide remedies for that?

Ms. RINGER. It depends on the circumstances and the judge, and I'm not saying that's so terrible. I'm really thinking that probably has its advantages.

Mr. BERMAN. Now, just to go back to what the Chairman asked you about, do you think in the Administration's bill there is a potential to conclude that laws like the laws that have been enacted in California to protect artists might be viewed as nullified?

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Ms. RINGER. Well, the Administration bill says that it isn't, and yet, I think there would be an enormous invitation to litigate all that. In other words, in the same section where it says the law does not protect certain moral rights, then it says it doesn't affect any other law-isn't that right?

Mr. BERMAN. Well, I'm looking at the finding, in which there is this Finding No. 4, that title 17 of the U.S. Code-this is in the Moorhead bill-does not provide an author with the right to be named as a work's author or to object to uses or changes to the work that would prejudice the author's reputation or honor. That is more than simply removing the Chairman's provisions-Ms. RINGER. Yes.

Mr. BERMAN [continuing]. About the right to object.

Ms. RINGER. And I don't think that's right in the first place. I think

Mr. BERMAN. You think we should not have a provision like this finding?

Ms. RINGER. Definitely. Either that, or that you should try to think through very carefully all the implications of what you're doing and craft it so that you don't cut the other laws that are evolving off at the pass.

Mr. BERMAN. So basically you're saying, for purposes of this punt, let this thing develop in a lot of different areas, and if individual Members of Congress or individual groups want to specifically expand rights when you introduce a bill, don't wrap it up into Berne but just move ahead on that?

Ms. RINGER. That's exactly right.

Mr. BERMAN. I have no further questions.

Mr. KASTENMEIER. I thank my colleague.

I have no further questions. I can only say in conclusion that should this act become law, I would hope that the witness' contributions, particularly early contributions, should be recognized and that whatever is signed into law, consistent of an adherence to Berne, I would hope the President would invite Barbara Ringer to be a special guest at the White House for such a signing.

Ms. RINGER. You touch me very much, Mr. Chairman.
Mr. KASTENMEIER. Thank you for your contribution.

I would like to now call our final panel of witnesses, two friends of the subcommittee. First is Gus Steinhilber, representing the Educators' Ad Hoc Committee on Copyright Law, who is the chairman of the committee, and also Associate Executive Director and General Counsel of the National School Boards Association. The Ad Hoc Committee represents virtually every school, public and private, in the country.

Second, Morton David Goldberg is appearing for the Information Industry Association, an organization to which he serves as Proprietary Rights Counsel. The IIA is a trade association that represents over 600 information publishers.

Welcome, gentlemen.

Mr. Steinhilber, we will call on you first.

TESTIMONY OF AUGUST W. STEINHILBER, CHAIRMAN, EDUCATORS' AD HOC COMMITTEE ON COPYRIGHT LAW, AND MORTON DAVID GOLDBERG, PROPRIETARY RIGHTS COUNSEL, INFORMATION INDUSTRY ASSOCIATION

Mr. STEINHILBER. Thank you, Mr. Chairman, for holding these hearings on the Berne Convention. As you indicated, I represent here the Educators' Ad Hoc Committee. The committee consists of nonprofit organizations, which virtually represents every school, college, library, public- and religious-affiliated, and from kindergarten through graduate school. We represent teachers, professors, librarians and school boards.

In fact, behind me is Eilene Cook with the American Library Association and Al Sumberg, American Association of University Professors, both of whom will be willing to provide any additional information that I cannot.

Mr. KASTENMEIER. We appreciate also the presence here today of those people. Thank you.

Mr. STEINHILBER. One of the principal concerns of the Educators' Ad Hoc Committee has been the preservation of the limited right of educators and scholars to use materials that they need for their teaching and research. We normally testify in opposition to most legislative requests made by the copyright industry. By and large, we consider that industry is not concerned with the public good, nor in the words of the Constitution in the promotion of the progress of science and useful arts. Their interest has always been, or it has almost always been monetary or personal in nature.

Yet, for nearly three years, the Educators' Ad Hoc Committee studied the issue of Berne. Last year, we took two votes on the issue. The first was whether we should oppose joining Berne, as we have opposed some of the other proposals. The vote was unanimous not to oppose joining Berne.

The second one was to support-in other words-whether we should just plain stand aside or take an active position. The vote to support Berne was not unanimous, but overwhelming.

You have copies of some of the documents that took place several years ago in the material that I have supplied to the committee. We support U.S. adherence to Berne even though we have nothing to gain from this action. We do so because of our opposition to international piracy and our support of a strong U.S. trade policy. However, as a voice of conscience, we will continue to remind everyone that copyright in the United States did not develop in the same manner that copyright developed on the continent of Europe. Copyright is a monopoly or a government license that must be carefully watched.

I underscore that again and again because, as I said, while we are here to support Berne, we also are here to remind everyone that copyright is a monopoly. It is not a "property right" in the traditional sense of that term.

While copyright is a monopoly where the U.S. Government provides individuals with limited exclusive license, we need to encourage the development of new ideas and new products. Creators need the financial incentive or they will not continue to produce.

For this reason, the Educators' Ad Hoc Committee supports U.S. adherence to Berne, provided we do not lose the rights that education enjoys under current copyright.

We do not and will not condone copyright piracy that exists in international circles. But I might add that the word "piracy" is often misused. Every time someone disagrees with the copyright industry, they are branded as "pirates."

Before agreeing to support Berne, we studied the following issues and came to the following conclusions. One, what will happen to implementing legislation as it proceeds through the legislative process? We came to the conclusion that we can live with current legislation, but we reserve the right that any amendment which threatens any of the rights of educational users will mean we reserve the right to oppose Berne in toto.

The second issue we discussed was moral rights. We came to the conclusion that there is no need for any new U.S. legislation on this issue. Current law is sufficient to join Berne. Every time we hear questions of right to recall, integrity, paternity, not only gives us concern of what could happen to our rights, but it raises issues with respect to First Amendment rights as well.

The third issue is public broadcasting compulsory license. Most experts believe that it is compatible with Berne, thus, our concerns were satisfied.

The fourth was instructional broadcasting rights under Section 110. No one has ever raised that as being incompatible with Berne, but it was one of the issues which we studied. We have, therefore, since that does not come up-we obviously are satisfied.

Fifth, self-execution. Berne cannot be a self-execution. Implementing legislation must be passed by both the House and the Senate. In no way can Berne supersede U.S. law. There was at least one time that I think a proposal made by some members of the copyright industry to have Berne self-executing or just go through the process of advise and consent by the Senate, which we raised holy hell on, if I may use that term.

Our sixth concern is technology. How would Berne relate to the issues involving new technology? Does current Berne philosophy treat all technology the same as music or printed materials? Will copyright lock the U.S. into an obsolete status quo?

Computer chips obviously need and receive protection, but should data bases be protected in the same way as other works? How can access be guaranteed, especially when some producers want to keep their products off the market?

We came to the conclusion that Berne was not a factor in this issue, although it may be. Indeed, a progressive U.S. stance on technology may shift Berne, rather than the reverse. The issue of technology and copyright needs much further discussion by all of us, but I think that is a matter for this committee and for all of us to look at another day.

One of the issues that continued to plague the Educators' Ad Hoc Committee is the future of the Copyright Office. We need a strong, independent Copyright Office. The copyright industry cannot and will not police itself.

We ask ourselves, will the loss of formalities reduce the office's power and are there alternatives? The Ad Hoc Committee has