enclosed is a draft of the testimony I am willing to give in front of the Judiciary Committee. Please let me know if my statement needs to be augmented, edited or changed in any way. Sincerely Ruchard Seria Richard Serra Immediate Past President The American Intellectual Property Law Association ROBERT C. KLINE (AIPLA) is a national society of 5,400 lawyers involved in the practice of patent, trademark, copyright and related Board of Directors laws affecting intellectual property. The Above Persons and ALBERT P. HALLUN 1. FRED KOENIGSBERG HERBERT H. MINTZ HAROLD C WEGNER The AIPLA has been carefully following developments over the past several years relating to possible United States adherence to the Berne convention for the Protection of Liberary and Artistic Works. On October 21, 1987 the Board of Directors unanimously adopted the following THOMAS I. O'BRIEN Resolution: JOHN O. TRESANSKY HENRY L. BRINKS H. Ross WORKMAN ROBERT A. ARMITAGE ROBERT L. BAECHTOLD WILLIAM H. ELLIOTT. JR. ALBERT ROBIN Councilman to NCPLA RESOLVED, that the American Intellectual Property The Berne Convention for the Protection of Literary and Artistic Works ("Berne") was created in 1886, and is the oldest international copyright convention. Today, the United States, the Soviet Union, and China are the only MICHAEL W. BLOMMER major countries that are not parties to Berne. Executive Director A change in two conditions now makes it both possible and imperative that the United States join Berne. First, the enactment of the 1976 Copyright Act went far towards bringing this country's law into conformance with the minimum standards for protection set by Berne. Second, the Formerly AMERICAN PATENT LAW ASSOCIATION (APLA) -2 increasingly important role of American copyrighted works in the international marketplace makes full United States participation in the major international copyright convention essential for the continued protection of American works as the highest possible level. Adherence to Berne will put the United States in an improved negotiating position to influence foreign governments to take steps necessary to eliminate piracy of United States works. Equally importantly, it will allow the United States to assume its rightful leadership role in shaping the nature and extent of copyright rights internationally as we face the difficult challenges posed by new technologies. We believe the benefits to be gained are too many and the accommodations to be made too few for the United States not to adhere to what is without question the paramount international copyright convention. As you well know, three bills are now pending in Congress to facilitate United States adherence to Berne. They are: 1) H.R. 1623, introduced by you; 2) H.R. 2692, introduced by Mr. Moorhead; and 3) S. 1301, introduced by Senator Leahy. While these bills differ in certain details, their basic approach is to make the minimal changes in our law which will allow our adherence to Berne. That is clearly the best approach. Adherence to Berne has raised a number of issues. Allow us to briefly comment on five of importance: (1) whether Berne is a self-executing treaty; (2) notice requirements; (3) the jukebox compulsory license; (4) moral rights; and (5) renewal and retroactivity. Self-Execution. The issue of whether Berne is a selfexecuting treaty is critical, because the provisions of a self-executing treaty automatically become law upon accession. We believe that Berne is not self-executing. This belief is based primarily on (1) the text of Article 6bis of the Convention itself, which contains absolutely no indication that Berne is intended to be self-executing, and which refers instead to implementation of the necessary protection through domestic legislation; and (2) case law construing the Paris Convention for the Protection of Industrial Property; see Mannington Mills Inc. V. Congoleum Corp., 593 F.2d 1287, 1298-1299 (3d Cir. 1979) (treaty contained language virtually identical to that in -3 Article 36 of Berne; court held that treaty was not selfexecuting). In view of the importance of the issue, we believe that appropriate language, expressing the view of Congress that Berne is not self-executing, be included in the implementing legislation itself and explained in the accompanying committee reports. We note that all three pending bills include such statements. Notice. The present Copyright Act (17 U.S.C. Section 401) contains notice requirements for certain categories of published works. The failure to comply with these requirements will, unless one of the Section 405 curative provisions apply, result in forfeiture of protection. Section 403 requires that where published works consist preponderantly of one or more works of the United States Government, a statement identifying the non-governmental portions must be included. Section 404 contains notice provisions for contributions to collective works. Sections 405 and 406 concern omissions or errors in the notice. There is a separate notice requirement in section 402 for sound recordings. However, because it is unclear whether sound recordings are subject to Berne protection in light of their protection under the Phonogram Convention, Section 402 is not addressed here. One of the bedrocks of Berne is Article 5(2), which prohibits the enjoyment and exercise of rights conditioned upon compliance with "any formality." We believe that the above-noted provisions (with the possible exception of Section 403) are incompatible with Article 5(2) of Berne and must be repealed. We strongly disagree with suggestions that there should be a "two-tier" approach to this (or any other) issue under which certain provisions of our laws incompatible with Berne would be altered for works of foreign origin but retained for works of American origin. The existence of such a two-tiered approach under which United States works are treated as second class citizens in their own country is, in our view, most undesirable from both policy and moral perspectives. We believe that mandatory copyright notice is no longer necessary, desirable, or beneficial. Thus, no harm will be done to American Copyright Law by repeal of these provisions. All three pending bills contain acceptable repeal of the mandatory notice requirement. by Jukebox Compulsory License. Section 116 provides a compulsory license for the public performance of nondramatic musical works embodied in phonorecords "coin-operated phonorecord players" or jukeboxes. The compulsory license fee was originally set by the 1976 Copyright Act, was subsequently adjusted by the Copyright Royalty Tribunal in accordance with the statute, and is currently the subject of a voluntary agreement between the copyright owners of musical works, represented by the performing rights organizations, and the jukebox operators, represented by their trade association. Article 11(1) of the Berne Convention states that authors of musical works shall have the exclusive right of authorizing: (i) the public performance of their works, including such public performance by any means or process; (ii) any communication to the public of the performance of their works. Section 116 is therefore incompatible with Article 11(1) of Berne since it permits the public performance of musical compositions without the consent of the copyright owners thereof. It must be repealed. As with the notice requirements, we disagree with suggestions for a two-tier approach to Section 116 incompatibility, under which works of United States origin would be subject to compulsory licensing but works of foreign origin would not. Each of the three bills follows the same basic approach to the jukebox compulsory license: the current provisions are repealed, and voluntary negotiations between the parties substituted. Should those negotiated fail, the Copyright Royalty Tribunal is empowered to arbitrate. The bills differ in minor procedural details for such Tribunal arbitration. We believe the basic approach of all three bills is acceptable, and suggest that the Tribunal procedures proposed by the Leahy bill, S. 1301, are best because of the freedom of action they confer upon the Tribunal. Such freedom of action is most compatible with the intent and spirit of Berne. Moral Rights. Berne contains provisions setting standards for certain rights commonly known as "moral rights," such as rights of "paternity" in the work, objection to mutilation of the work, and the like. The issue of whether American Federal law must be modified to recognize such moral rights has generated controversy. Your subcommittee hearings have explored this issue in considerable detail. |