to registration than existed prior to 1978, under the 1909 Act.

(ii) The 1976 Act added a second potent incentive for registration that did not exist from 1909 to 1977. Under section 410 (c) a copyright certificate provides mandatory prima facie evidence of a copyright's validity and the facts stated in it only when registration is made before or within 5 years after publication. That prima facie effect is extremely valuable to copyright owners and their successors or heirs; consequently, the 5-year limitation is another powerful new spur to registration. It did not exist from 1909 to 1977 under section 209 of the 1909 Act; prima facie effect in those decades was given to a registration certificate without any time limit on registration.

Since these two post-1977 conditions provide far greater impetus for registration than existed under the 1909 Act, and vastly greater stimulus to register than does section 411, there is no reason for the United States to enter Berne while retaining formalities that are not compatible with its Article 5(2) -- registration as a condition for suit, and recordation ass a condition of suit.

There is even less reason why a new penalty should be added to our statute, as S. 1301 provides. Although it would eliminate section 411, it would add a new condition (section 7(c)) which deprives copyright owners of statutory damages and attorneys fees for all subsequent infringements (even those occurring after registration), if registration or recordation is not made within 5 years after publication. Copyright owners believe this unnecessary penalty will be very harmful to many author and copyright proprietors.

The view also has been expressed that if this new forfeiture of basic remedies is added to U.S. law, other countries in and outside of Berne might decide to apply a similar registration (or recordation) requirement to works of U.S. origin, or even decide to require registration of works of U.S. origin on penalty of losing some remedies under their laws. The United States would be in no position to object because we impose these requirements and penalties on their authors. If other nations did impose these requirements, U.S. copyright owners would be deprived of significant protection in important foreign markets -- just as many U.S. corporations lose protection of trademarks abroad because they cannot afford to separately register their marks in several countries. One of the great advantages U.S. copyright owners enjoy in other nations thanks largely to Article 5(2) of Berne, is the absence of registration (or recordation) requirements and penalizing forfeitures of remedies such as sections 412 provides and S. 1301 proposes to add.

Respectfully submitted,

National Committee for the Berne Convention,

By Irwin Karp

National Committee for the Berne Convention
July 2, 1987

WHY THE UNITED STATES
SHOULD JOIN

THE BERNE COPYRIGHT CONVENTION

As of September 1, 1987, the following organizations have subscribed to this Statement:

As of January 1, 1988, the following organizations also had subscribed to this Statement:

Ashton-Tate Corporation, Harris Publishing Company, Hudson Hills Press, Inc., IPL (Intellectual Property Owners, Inc.), Lotus Development Corporation, MPAA (Motion Picture Association of America), Music Publishers Association of the United States, Peter Norton Computing, and Intellectual Property Committee (consisting of): Bristol-Myers Company, E.I. du Pont de Nemours and Company, FMC Corporation, General Electric Company, General Motors Corporation, Hewlett-Packard Company, IBM Corporation, Johnson & Johnson, Merck & Co., Inc., Monsanto Company, Pfizer Inc., and Rockwell International.

Mr. KASTENMEIER. That, as I say, concludes the hearing today. We will stand adjourned until 9:30 tomorrow morning at which time we will proceed with the concluding hearing date on the subject of the Berne Convention.

[Whereupon, at 11:35 a.m., the subcommittee was adjourned, subject to the call of the Chair.]

BERNE CONVENTION IMPLEMENTATION ACT OF

1988

WEDNESDAY, FEBRUARY 10, 1988

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to call, at 9:40 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Berman, Hyde and DeWine.

Staff: Michael J. Remington, chief counsel; David W. Beier, counsel; Thomas E. Mooney and Joseph V. Wolfe, associate counsel; and Audrey K. Marcus, clerk.

Mr. KASTENMEIER. The committee will come to order.

The gentleman from Ohio.

Mr. DEWINE. Mr. Chairman, I ask unanimous consent that the subcommittee permit the meeting today to be covered in whole or in part by television broadcast, radio broadcast, and/or still photography, pursuant to Rule 5 of the committee rules.

Mr. KASTENMEIER. Without objection, the request is agreed to. This morning the subcommittee is having its sixth and final, we hope, day of hearings on legislative proposals designed to allow the United States to adhere to the Berne Copyright Convention.

When I introduced my bill, H.R. 1623, a little less than a year ago, I said it was designed to raise all the questions that might be asked for the fullest range of private and public interests, to be aware of what Berne adherence might well mean now and for the future. The primary goal of the bill was to stimulate debate about issues and to further understanding about the Berne Convention in an open and public setting.

Following the introduction of my bill, Mr. Moorhead introduced the Administration bill in the House, and the Senate bill was introduced by Senator Hatch. Another bill, yet a third form of Berne adherence proposal, was introduced subsequently by Senator Leahy.

Today marks the end of the hearing process, which has not only consumed six legislative days for us here, but five days of consultations with European and other copyright experts abroad. With that in mind, I would like to offer the transcript of the roundtable discussions on U.S. adherence to the Berne Convention that occurred (663)