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protections. It is scarcely imaginable they would give up hard-won Berne protections in any eventual GATT arrangement or look with favor on our failure adequately to respect Berne standards. The countries or places where piracy reigns are quick, in response to criticism, to point to our own failure to join, and operate through, Berne.
The Kastenmeier and Moorhead bills seem to me to contain excellent provisions on most of the major issues raised by Berne adherence. You, Representative Moorhead and your staffs are to be congratulated on your foresight and skill.
First, the so-called jukebox provisions in $8 seem judicious and adequate. I believe, however, that provisions of the Leahy bill (S.1301) which are comparable to the Kastenmeier proposal may be found to offer some additional, useful ideas. In the end, the willingness of the affected interests performing rights organizations and juke-box operators to agree to these Berne-compatible arrangements would seem the critical factor, but there does not appear to be any reason to think that agreement cannot be reached.
Second, on notice formalities the Kastenmeier bill seems generally well conceived, as do its provisions on works in the public domain. In Section 14, on the Copyright Royalty Tribunal, I would prefer (in line 5) some such formula as "due consideration" to "substantial deference." The latter may have more of a "freezing effect," unresponsive to inflation or marketing developments, than our experience with some 60 years of $.02 mechanical royalties should lead us to desire.
On only two matters would I urge, in the strongest possible terms, that modifications be made in the Kastenmeier bill. These are (a) revision of our treatment of registration and recordation and their effect on copyright validity and on enforcement suits and remedies and (b) elimination of the provisions on moral rights which I believe are unnecessary for adherence to Berne and might unjustifiably harm the cause of adherence and which, if adopted, would seem unsatisfactory for both proponents and opponents of moral rights. I am told, and pleased to hear, you are now of the view that the moral rights provision should be dropped.
REGISTRATION AND RECORDATION
I do not believe we can in good conscience consider as "adequate" under Berne the 8411 provision in the 1976 Act that registration must precede suit for infringement. The "copyright without a remedy" thus envisaged in the present law is meaningless. Registration is more than adequately compelled by $$412 and 410(c) and by various advantages accruing therefrom.
If claimants were required to register published works, at any time and without penalty, before suing, that might be a possible compromise but, like $411, it could invite retaliation that could injure dissemination of U.S. works abroad.
2. Deposit of copies of works with the Library of Congress has a public benefit purpose.' Deposit can be adequately assured, I believe, by the reasonable monetary penalties provided for that do not affect enforceability of rights.
As the moral rights provision is to be eliminated, I will merely reiterate my support for this step. I do believe we now qualify for Berne on moral rights with our law as it is evolving. Adherence legislation should leave existing U.S. law and legal processes untouched, and not "freeze" them in this area. A "freeze" would indeed raise questions of good faith in our Berne compliance. It would tie the hands of our courts, hampering their efforts to do justice in future cases in new, changing, and often unforeseeable, circumstances. In sum, Berne adherence, with only such revisions as are essential to secure it, is the paramount task for today, as you have so well understood.
John M. Kernochan
JMK : sb
Columbia University in the City of New York, New York, N.Y. 10027
I am writing in strong support of u.s. adherence to the Berne Convention for the Protection of Literary and Artistic Property. Joining Berne would confirm the U.S.' committment to serious and effective international copyright protection, and would promote protection of U.S. copyright holders. Copyrighted works, such as audiovisual works, musical works, and computer software, comprise some of this country's leading exports; we should do all we can to enhance protection of these works aborad.
INTELLECTUAL PROPERTY COMMITTEE
March 1, 1988
The Honorable Robert W. Kastermeier
civil Liberties & the
Administration of Justice Committee on the Judiciary Washington, D.C. 20515 Dear Mr. Chairman:
The Intellectual Property Committee (IPC) urges you to support U.S. adherence to the Berne Copyright Convention. The IP is a coalition of twelve U.S. corporations*. It represents a broad spectrum of intellectual property interests including companies which rely an adequate and effective copyright protection. Wie believe that u.s. adherence to the Berne Convention will greatly strengthen the arrent campaign to combat worldwide piracy.
A consensus exists in the United States today that adherence to Berne is an essential element in the current campaign that the u.s. Government is mounting to strengthen worldwide protection for all forms of intellectual property. u.s. adherence to Berne will enhance the credibility of our negotiators and, thus, increase the chances for successful conclusion of the critical and far-reaching GATT negotiations an intellectual property. The United States cannot credibly urge other governments to improve their protection of intellectual property by adopting Berne-level standards of protection if the United States itself does not belong to the premier copyright convention. Adherence to Berne will permit the United States to argue aggressively for acceptance of the fundamental principles of copyright protection embodied in Berne and to pursue a similar approach in other areas of intellectual property (i.e., patents, trademarks, etc) where arrent international standards are clearly inadequate.
U.S. adherence to Berne will also give the United States a voice and a veto in the world Intellectual Property Organization, which actministers the Berne Convention, at a time when this institution will increasingly be dealing with
*Bristol-Myers, Dupont, FMC Corporation, General Electric, General Motors, Hewlett-Packard, IBM, Johnson & Johnson, Merck, Monsanto, Pfizer, Rockwell International Corporation
important questions that effect the competitiveness of u.s. copyright industries well into the twenty first century. Berne membership will permit the United States to press for higher levels of protection worldwide and - most importantly – to resist any attempts to weaken Bere's fundamental standards. We urge your support for u.s. adherence to the Berne copyright convention.
The IPC Management Conmittee:
C. L. Clemente, Pfizer
James E. Ingram, IEM
Edwin Tocker, Dupont