And, fourth, there was a large increase in the mechanical royalty rate. Fifth, notice of copyright was liberalized with a curative provision so it wasn't either comply or drop dead as it had been under the 1909 Act. Sixth, it effectively allowed for the repeal of the manufacturing clause which had been a sticking point over the years. And you added choreographic works as protected subject matter. You also gave a compulsory license to the public broadcasters, and you assured the divisibility of copyright. These were historic changes, and, as Mr. Moorhead mentioned, they did bring us very close to conformity with the Berne Convention. The 1971 Paris Act of the Berne Convention, the recent edition is the one that we would have to adhere to if we were to join Berne. The substantive provisions of the Berne Convention cannot be accurately capsulized in a summary statement. Instead, I would like to just generally mention the basic provisions. In fact, the meaning of the provisions of the Berne Convention cannot really be fully found from a mere reading of the 1971 Paris Act. Copyright treaties simply do not exist in isolation from the domestic copyright laws of the states party to the treaty. And that's one of the problems we have in assessing what the actual impact will be on U.S. law. The Berne Convention has three general types of provisions. First, specific rules that guarantee rights to authors and proprietors; second, rules that establish more general obligations, leaving the details to national legislation within specified limits; and, third, optional rules whose acceptance is left entirely to national law. Absent specific legislation, and depending upon domestic jurisprudence, rules that are susceptible of direct application could be given legal effect by adherence to the Convention. Let me quickly compare U.S. law with the Berne obligations as we understand them. First, the area of formalities. This had long been a sticking point. In the area of notice, U.S. law is inconsistent. If notice is a condition of the existence of copyright in a published work, Berne would prohibit such a formality. Registration and deposit are also formalities. The Copyright Office believes that registration is consistent with Berne except that linkage between notice and registration must be dropped. All seem to agree that prima facie effect and statutory damages can be conditioned on registration because these are procedural and because they affect remedies. All agree, I think, that mandatory deposit for the National Library is consistent with the Berne Convention. On the recordation issue, the Copyright Office believes that recordation is consistent with Berne. The Ad Hoc Committee says that recordation cannot be a prerequisite to an infringement suit. I suspect you will hear more on that point in subsequent hearings. As regards the last formality of renewal, it is generally agreed that renewal is inconsistent with Berne, both because the copyright is conditioned upon timely reregistration and because the 28-year original term period is far too short. Next let me turn to the issue of self-execution. Some provisions of Berne are apparently capable of direct application by the courts, depending upon the law of the given country. If the U.S. does not want to apply Berne directly, but instead wants to rely on Congressional enactments, language must be used to amend the copyright law in this country. H.R. 1623 does this. The next issue is the issue of retroactivity. Article 18 of Berne appears to obligate members to give at least some retroactive protection to works that remain under copyright in the country of origin, but have lost copyright in the country where protection is claimed for reasons other than expiration of term. The usual case would be an English work published without notice of copyright in the United Kingdom, whether or not that could be somehow recaptured. Next I would like to talk briefly about the juke box compulsory license. Berne does not permit compulsory licenses with respect to the non-broadcast public performance of music. Section 116 is inconsistent with Berne, but I suspect that the formulation found in H.R. 1623 would satisfy the requirements of Berne Convention. Fifth, author rights is one of the critical issues involved here. Article 66 of the Berne Convention requires some protection for the author apart from who holds the copyright with respect to the right to be named as author-this is called a paternity right-and the right to prevent distortions or mutilations prejudicial to the authors' honor or reputation-this is called the integrity right. Some argue that U.S. law protects these rights through State laws and through the Lanham Act, others find our law inadequate. In any case, State laws are not uniform on the subject and it's not in a settled condition in every State. Sixth, the cable retransmission issue. Although Berne permits a compulsory license for cable retransmission of broadcasts, the author must be adequately compensated for the use. Some countries have contended that the compulsory license can be invoked only after negotiated licenses are attempted and then fail. And, last, the issue of protection for architectural works. Article 2 of the Berne Convention requires protection for three-dimensional works relative to architecture. U.S. law does not protect such works. This is one of the issues you will have to look at. With your permission, I would like to get into a specific comparison of Berne with U.S. law and the solutions proposed by 1623, and in the interest of some variety, I will ask Ms. Schrader to do that, with your permission, Mr. Chairman. [The statement of Mr. Oman follows:] Statement of Ralph Oman Assistant Librarian for Copyright Services Before the House Subcommittee on Courts, Civil Liberties Mr. Chairman and members of the Subcommittee, it is a privilege to appear before you today to talk about H.R. 1623 and the Berne Convention for the Protection of Literary and Artistic Works. H.R. 1623 1/ proposes to amend title 17 of the United States Code to enable the United States to meet its obligations as a nation adhering to the Berne Convention for the Protection of Literary and Artistic Works, as revised at Paris on July 24, 1971. This legislation proposes to remove from the U.S. copyright law provisions that are incompatible with the prescriptions of the ·Paris revision of Berne and to add provisions not presently in our law that would be required by the Berne Convention. H.R. 1623 is a thoughtful bill that attempts to reconcile conflicting interests and to come to grips with the most important international copyright issue the United States has had to consider in this century. The bill is a tribute to the tireless, bipartisan efforts in the copyright field of Chairman Kastenmeier and Mr. Moorhead. The issue is not new. Berne 1. In the 99th Congress Senator Mathias introduced S. 2904, a Berne implementation bill. On May 24, 1987, Senator Leahy introduced S. 1301, a Berne implementation bill, which he describes as a synthesis of S. 2904 and H.R. 1623. He also describes his bill as taking the "minimalist" approach to changes necessary in U.S. copyright law in order to join Berne. - 2 adherence and the necessary implementing legislation were extensively debated and considered in the 1920's and 1930's. Today is the first House hearing on Berne implementing legislation since 1936.2/ As Chairman Kastenmeier so aptly noted, joining Berne could be one of "the most historic efforts of the 100th Congress" or it could be a "difficult endeavor to start." This bill addresses forthrightly the questions that we must resolve before the United States can join Berne, and your series of hearings will give the interested parties an opportunity to air their responses to these questions. We at the Copyright Office have joined in the reexamination of the Berne copyright issues as Congress once again considers whether or not the United States should join the Berne Convention. Our statement discusses the history and basic principles of Berne, especially the 1971 Paris version; the consequences of implementing Berne on U.S. copyright law; H.R. 1623; and the arguments for and against joining the Berne Convention. I. HISTORY AND BASIC PRINCIPLES OF THE BERNE CONVENTION A. Origin of the 1886 Berne Convention. The Berne Convention of 1886 was the product of 28 years of study and conferences, which began at the 1858 Congress of Authors and Artists in Brussels, Belgium. Several countries had already undertaken individual efforts to protect the works of foreign authors on the basis of reciprocity. In spite of the protection afforded by the bilateral agreements, negotiated by many European countries, there was still general dissatisfaction with the 2. Recently, an Ad Hoc Working Group on U.S. Adherence to the Berne Convention considered the compatibility of U.S. law and Berne. Its Final Report and comments on the Preliminary Report of December 31, 1985 were published in 10 Journal of the Law and the Arts 513 (1986) (hereinafter "Ad Hoc Working Group Report"). - 3 system. The agreements often subjected copyright protection to a variety of conditions and restrictions, and authors and publishers had to comply with a multitude of formalities. The need for a simpler and more uniform method of protecting the works of authors in countries other than their country of origin became apparent. In 1878, during a Literary Congress held at Paris under the chairmanship of Victor Hugo, the delegates established a permanent international organization the International Literary Association.3/ During an 1882 meeting this Association adopted a resolution stating "that the need for the protection of intellectual property was the same in all countries, and that complete satisfaction of this need could only be obtained by the constitution of 'a union for literary property'...."4/ In 1884, the Swiss Federal Council convened a diplomatic conference at Berne, and the third session of the conference adopted the text of an international convention for the protection of literary and artistic works in September 1886.5/ This Convention reflects many of the most deeply held desires of authors and artists for recognition of their economic rights in their creations. The authors' objectives were both simple and radical: that recognition of copyright in favor of authors "must be made part of the legislation of all civilized countries;" that the recognition of copyright among states not be based upon reciprocity; that no discrimination in rights be permitted 3. In 1884 the word "artistic" was added and the organization became L'Association Litteraire et Artistique Internationale, a title by which it is still known. 4. S. Ladas, The International Protection of Literary and Artistic Property 75 (1938) (hereinafter "Ladas"). 5. The original text was signed by ten countries: Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia, Spain, Switzerland, and Tunisia. |