(3) in terms of the future (i.e., that an intellectual property treaty such as Berne is not self-executing). Whether greater or lesser moral rights per se should be the subject of legislative consideration in the United States is a question that is separate and apart from the Berne adherence compatibility question. The weight of authority in the United States as expressed by eminent copyright law specialists, and in such Administration and Congressional work-products as hearing statements and pending legislation, agrees that there are very few issues of incompatibility existing between United States law and provisions in the Berne Convention. None of these incompatible issues is insurmountable as is evident from the three Bills on Berne Adherence now pending in the Congress. Accordingly, recognizing the desirability -- and the need for this country to join Berne, the policy-making House of Delegates of the American Bar Association on February 18, 1987, adopted the following resolution aimed at prompting United States Government action to improve the level of intellectual property protection obtainable in foreign countries: RESOLVED, that the American Bar Association approves in principle, and favors enactment of legislation to permit, adherence by the United States to the Berne Convention for the Protection of Literary and Artistic Works. This resolution evidences support at the highest level in the American Bar Association for a strong effort by the United States Government to effect Berne adherence. Although the resolution is not specific as to legislative content necessary for adherence, the American Bar Association urges that the issue of compatibility be viewed in a realistic, balanced fashion, taking into account variations in the actual practices of Berne members. We urge that the enabling legislation deal only with those matters which need be dealt with for us to agree, lest extraneous matters bog down the legislation in unnecessary controversy. (4) Progress is being made by the Departments of State and Commerce through their close work with the United States Trade Representative to develop a widely acceptable code for the protection of intellectual property rights in the Uruguay Round of GATT and, more particularly, to develop copyright standards in such a code which are based upon the high levels of protection in the Berne Convention. - As stated in an earlier letter to Ambassador Yeutter (a copy of which is enclosed for your convenience), "the American Bar Association fully supports the current GATT initiative on intellectual property". This expression of Association support for a GATT intellectual property code, along with the Association's support for Berne adherence as expressed in this letter, makes it clear that the American Bar Association favors the development of copyright standards in a GATT code which is based on the high levels of protection in the Berne Convention. We thank you again for the opportunity to submit this statement of American Bar Association support for adherence by the United States to the Berne Convention for the Protection of Literary and Artistic Works. We appreciate your efforts, and those of your colleagues, to bring this matter to a successful conclusion. I am writing to you on behalf of the American Bar As you are well aware, the lack of adequate and effective The costs of innovation, production development and marketing have increased over the years and are continuing to grow. If each succeeding generation of products, processes and services is to be developed, it is necessary that innovators be able to recover these costs as well as a return on their investment. Counterfeiters and pirates do not face similar costs as they take a free ride on the innovator's work and thus are often able to displace legitimately-produced goods and works from international markets. The result is that certain industries are finding it increasingly difficult to obtain an appropriate economic return on their investment, which will inevitably lead to a slowing down of technical progress and its benefits to everybody. Even developing countries can be injured by extensive counterfeiting and piracy. The financial losses suffered by patent and copyright holders from such unfair Honorable Clayton Yeutter June 22, 1987 activities make it more difficult to generate the investment capital that might contribute to the economic progress of the developing countries. Further, counterfeiting and piracy inhibit local commercialization of products and development of local industries that require an adequate period of exclusivity to recover initial costs. Thus, the industrial, intellectual and artistic creativity to be found in the developing countries may be left underutilized. Recognizing these problems, on February 16, 1987, the policy-making House of Delegates of the American Bar Association adopted two resolutions aimed at prompting U.S. Government action to improve the level of intellectual property protection obtainable in foreign countries. These resolutions are as follows: RESOLVED, that the American Bar Association supports in RESOLVED, that the American Bar Association favors the These resolutions evidence support at the highest level in the American Bar Association for a strong effort by the United States government to obtain an effective GATT agreement on intellectual property in the upcoming round of negotiations. Although the resolutions of the Association are not specific as to the form of agreement, you will note that the second resolution does Honorable Clayton Yeutter June 22, 1987 contemplate the negotiation of intellectual property codes. Such codes, which would establish rights and obligations among the signatories, would facilitate the negotiations since they would enable countries with a common interest in eliminating trade distortions to enter expeditiously into agreement. It has been suggested that conducting the negotiations within the narrow context of a code, as contrasted to amending the GATT, would reduce the problem of trade-offs unrelated to intellectual property issues. Whatever may be the appropriate negotiating strategy and form of agreement, the American Bar Association fully supports the current GATT initiative on intellectual property and supports your efforts to bring it to a successful conclusion. Cc: Mr. William Marshall Lee, Chairman Section of Patent, Trademark and Copyright Law Mr. Robert S. Rendell, Chairman Section of International Law and Practice |