and the failure to publish properly in unfamiliar markets can be very costly, because it can result in exposing U.S. works to piracy. Furthermore, documentary and evidentiary difficulties in establishing that a work has been simultaneously published in a Berne country substantially increase the cost and uncertainty of litigation, and provide a virtually automatic defense to pirates in a criminal or civil proceeding. ● The protection that U.S. works now receive as a result of Berne can come to an end at any time. Any Berne signatory can terminate the "free ride" that it may now permit for U.S. works through the "back door" of simultaneous publication in the United States and in a Berne member country. The levels of protection for a U.S. work may become problematic even in countries that also belong to the Universal Copyright Convention, since high levels of protection for U.S. works under local laws derive from adherence to Berne. U.S. adherence to the Berne Convention would give it a voice and a veto in an organization that will increasingly be dealing with important questions that affect the competitiveness of U.S. copyright industries well into the twenty-first century. Contemplation of the establishment of another international forum for intellectual property issues in the GATT has created a new and welcome level of receptivity to change in WIPO (the World Intellectual Property Organization), which administers the Berne Convention, and in its member countries. The U.S. must become a Berne member to take full advantage of the opportunity to press for higher levels of protection worldwide and to resist any attempts to weaken Berne's fundamental standards. If the GATT negotiations on intellectual property fail and the United States rejects adherence to Berne, many Berne countries might close the "back door" to protection. Should this happen. the United States could wind up in the worst of all possible worlds. U.S. international copyright relations would then be set back to a level not seen since the end of World War II, when the U.S. began to come out of its isolationist shell and recognize the substantial stake in foreign markets for its copyrighted works and the need to exercise leadership in the international copyright community. ANY RISKS PERCEIVED IN U.S. ADHERENCE TO BERNE_CAN BE Appropriate legislation can minimize the potential risks some now perceive in implementing Beme Standards in the U.S. All proposals for implementing legislation explicitly state that Berne is not self-executing. Therefore, anyone seeking the benefit of U.S. obligations under Berne can make a claim only under the provisions of U.S. domestic law. Few changes are required in our copyright laws to permit U.S. adherence to the Berne Convention. The jukebox provisions are being worked out. The concerns of users have been addressed. Moral rights are adequately addressed in current law. Uncertainty would thus be minimized and current business practices would not be upset. Adherence will not require any changes in the provision of our copyright law that benefit schools, libraries and other public sector copyright users. U.S. adherence to Berne will in no way effect a change in the present state of U.S. law on moral rights. Rights equivalent to the minimum required by Berne already exist in the U.S. through a combination of statutory and common law doctrines. While the "moral right" had its genesis in the civil law tradition, the term itself does not even appear in the Convention and the practices of Berne countries vary widely. This Berne obligation is entirely consistent with the U.S. common law and statutory approach to copyright protection. THE UNIVERSITY OF MICHIGAN LAW SCHOOL HUTCHINS HALL ANN ARBOR, MICHIGAN 48109-1215 Jessica D. Litman February 4, 1988 Hon. Robert W. Kastenmeier Chairman, Subcommittee on Courts, Civil Liberties and U.S. House of Representatives, Committee on the Judiciary Dear Representative Kastenmeier : Professor Ed Damich has suggested that I write to you concerning the pending Bills to amend U.S. Copyright law to permit our accession to the Berne Convention. Like most other academics in copyright law, I favor our joining Berne. It is essential that we enable ourselves to negotiate intellectual property protection in the multilateral forum provided by W.I.P.O. in order to advance United States interests in the coming decades of rapid technological change. I believe that this point of view is explored fully in the record already before you, SO I will not belabor it here. I would like to discuss, briefly, two issues: formalities and moral rights. that a bad our law to Berne's run, compromise the us. I would therefore I share with some of my colleagues the concern faith or stingy attempt to conform requirements will, at least in the short influence that accession to Berne can give suggest that where it is feasible for us to do so, we should abandon entirely those aspects of are law that are incompatible with Berne. Our provisions on formalities can, I think, be omitted from the law at little cost. After the liberalization of formalities contained in the 1976 General Revision, mandatory THE UNIVERSITY OF MICHIGAN LAW SCHOOL HUTCHINS HALL ANN ARBOR, MICHIGAN 48109-1215 to notice, and registration and recordation as prerequisites for suit, serve little current purpose. The only cost discontinuing them is likely to be some upheaval among Copyright Office employees. The question of moral rights is a more troubling one. I share with Professor Damich the view that the Report of the Ad Hoc Working Group paints an inaccurate and unduly rosy picture of the "totality" of U.S. protection of some equivalent of moral rights. The question of amending our law to provide explicit recognition of moral rights is an exceedingly difficult one. I don't think that its susceptible to a quick fix, and I doubt that any process of encouraging private negotiations among parties with economic interests in copyrights is likely, in this instance, to lead to a solution in the public interest. In my own view, the worst of all alternatives would be to enact a moral rights provision that is ill-considered. I am very concerned about the proposed sections 106a and 119 of H.R. 1623. The provision in section 119 (a) making moral rights alienable, as distinguished from waivable, is especially problematic. opinion, the establishment of alienable moral rights is an invitation to trouble. In my For the examination this December in my Copyright course, I asked my students to comment on three of the Bills now pending before Congress: your H.R. 1623, the administration's H.R. 2962, and Senator Leahy's S. 1301. The students had not previously seen the bills or heard any remarks from me on their merits. I would like to share with you some of the comments made by Daniella Salz, a second year student, on H.R. 1623: - - H.R. 1623 grants the full Berne moral rights package flat out. But whereas an untortured reading of 6bis says these authors' rights shall be inalienable, section 119 of H.R. 1623 lets invites - authors to freely alienate or waive their moral rights. Nothing the proposed language prevents A from transferring her economic rights to B, her paternity rights to C, and her integrity rights to D. Imagine the following: in THE UNIVERSITY OF MICHIGAN LAW SCHOOL HUTCHINS HALL ANN ARBOR, MICHIGAN 48109-1215 An impoverished A writes a leftist play. B pays her for the rights to exploit it (as under the 1976 Act). C, a wealthy philistine, pays handsomely for the right to claim authorship, receive critical adulation, and ride the talk-show circuit. A, who now has cancer and staggering medical bills, sells to D, a well meaning liberal, her integrity rights. Then E secretly raises money from la prominent radical rightwing organization] in order to make D an offer he can't refuse. E enjoins any production that does not play the work as an anti-leftist satire. (His heirs will be able to do likewise to B's heirs.) B balks, so either B's economic rights are now worthless or he sells them to F, who is only to happy to oblige E. The critics subject C to ridicule. A, the gifted playwright, dies unknown (in these circumstances, probably just as well). This parade of horrors Exam # 41865 (emphasis in original). The task of drafting a moral rights provision that is both compatible with Berne and acceptable to domestic intersts is a daunting one, and I would like to suggest a different approach. The Ad Hoc Working Group presents a colorable (although in my view erroneous) claim that the United States is already in compliance with article 6bis of Berne. Provisions in our law for moral rights are simply less important to most Berne nations than the elimination of formalities. I suggest that it would be acceptable to all concerned to accede on the basis of the Ad Hoc Working Group's conclusions but to request at the same time that the Copyright Office undertake its own study of moral rights under U.S. law and report its recommendations to Congress within two years of our accession to Berne. The Copyright Office could THE UNIVERSITY OF MICHIGAN LAW SCHOOL HUTCHINS HALL ANN ARBOR, MICHIGAN 48109-1215 then perform such a study with the benefit of a closer relationship with W.I.P.O., and without the political pressures that inform the issue in the current legislative effort. Sincerely, Wira Phitmer Jessica D. Litman Associate Professor of Law |