in Geneva, Switzerland on November 25 and 26 and is currently available. If there is no objection, that can be received and made a part of the record. [The transcript is reprinted as Appendix follows:] Mr. KASTENMEIER. Next week, I am informed, the Senate starts its hearings on the proposed legislation. Normally, copyright bills evoke some form of controversy, and these bills are no exception. Controversy has swirled around what the Congress is required to do with respect to U.S. law in order to adhere to the Berne Convention. This is especially true in the areas of moral rights, architectural works, and there is increasing debate to an extent about what might have appeared to be a lesser issue in terms of formalities. I would observe that the compulsory license, particularly with respect to jukebox, seems to be less of a problem than might have been forecast. When I introduced the bill originally, I observed that in the best of circumstances this faces an uphill climb, but I think that a good part of the climb has been accomplished through the hearing proe ess. In this concluding morning we have several expert witnesses, guides to help us along our path toward the end. First we will hear from Professor Paul Goldstein from Stanford University Law School. Professor Goldstein has been of enormous assistance to the subcommittee over the past several years, including being the rapporteur of the 1984 Congressional Symposium on Copyright and Technological Change, and the chairman of the OTA advisory panel on intellectual property rights in the age of electronics and information. I have asked Professor Goldstein to review previous testimony presented to the committee, and then to report his conclusions. Professor Goldstein, we have your statement and would like to call you first to come forward. We are delighted to greet you here this morning and to listen to what you have to say. You may proceed as you wish, either from your statement, or if you wish to abbreviate your statement, you may do so. Actually, your statement is only 81⁄2 pages long. TESTIMONY OF PAUL GOLDSTEIN, STELLA W. AND IRA S. Mr. GOLDSTEIN. I will abbreviate my already abbreviated statement, and would ask that the statement itself be accepted for the record. Mr. KASTENMEIER. Without objection, that will be done. Mr. GOLDSTEIN. Thank you, Mr. Chairman, for inviting me to testify on the important questions raised by the H.R. 1623 and H.R. 2962. I should note for the record that in testifying before you today I speak strictly for myself and not on behalf of any client, organization or institution. My testimony divides into three parts. The first two parts draw directly on testimony previously presented to your subcommittee and distill two central themes: the dollars and cents of adhering to Berne, and the ethical sense of adhering to Berne. The third part of my testimony addresses questions to be considered in adjusting U.S. law to meet Berne standards. Before addressing these issues, two preliminary points are in order. First, Mr. Chairman, in reviewing the testimony presented to your subcommittee, I was struck by the depth and overall balance of the views presented. I congratulate your subcommittee and staff for assembling an array of views that is as diverse as it is well-informed. The record that you have assembled will substantially support informed legislative action on Berne. Second, I should note that I was particularly struck by the testimony of Register of Copyrights Ralph Oman, most notably by the last section in which he contrasts the arguments for and against adherence to Berne. I have no where seen a clearer, more objective analysis of the competing views. Let me first turn to the dollars and cents of adherence to Berne. Berne's proponents cite four principal benefits that would flow from adherence, ranging from the concrete to the abstract. At the concrete end of the spectrum is the simple fact that adherence to Berne will relieve American artists, authors, publishers and producers of the highly wasteful costs they must incur to get Berne protection through the back door of simultaneous publication in a Berne country. Second is the related risk that, if we do not adhere to Berne, Americans will find the Berne back door slammed in their faces. Third, and somewhat less concrete is the proponents' claim that membership in Berne will strengthen this country's hand in its bilateral and multilateral trade negotiations and will enhance United States leadership in the international copyright community. Finally adherence will strengthen the convention itself and thus the cause of copyright and authors' rights throughout the world. Berne's opponents argue that adherence promises no benefits over the short term and that the long-term benefits are speculative at best. The back door to Berne, they say, is neither cumbersome nor costly. Further, even without being a member of Berne, the United States has achieved considerable success in bilateral and multilateral negotiations. By reason of its economic importance, the United States already occupies a central role in international copyright policy making. While membership in Berne may strengthen the convention, opponents say, it will weaken the United States by limiting Congress' options in resolving issues created by emerging technologies. Finally, opponents argue that the changes required to conform U.S. law to Berne standards will plague our law with uncertainty and with all of the costs that attend uncertainty. The concerns expressed by Berne's opponents have merit. But they do not rebut the affirmative case for adherence to Berne. First, recourse to Berne's back door will always have some positive cost. Although the other benefits to adherence to Berne may be long term and, in that sense, speculative, their speculativeness makes them no less real. I can think of no more concrete evidence that adherence to Berne will strengthen this country's hand in its bilateral and multilateral treaty negotiations than the testimony given to that effect by the very administration officials who are charged with implementing our trade policy. Whether, and to what extent, adherence to Berne will place domestic law in a straightjacket will depend on what adherence to Berne implies. Whether and to what extent changes made to conform U.S. law to Berne standards will introduce uncertainty into domestic law will depend largely on how those changes are structured. I will return to these last two points in the final part of my testimony. Let me first turn, though, to the ethical sense of adherence to Berne. It would be wrong, I believe, to rest the case for or against adherence to Berne exclusively on a tally of economic costs and benefits. Congress has rested some of its most important legislative acts—its civil rights legislation is a signal example-not on a summing of dollars and cents but, rather, on Congress' own ethical sense of the right thing to do in the circumstances. A strong ethical case can be made for adherence to Berne, and I am aware of no ethical case against it. During our first century, as ourselves a developing nation and net importer of copyrighted works, it served our immediate economic interests to stay outside the international copyright community. When in the twentieth century we became a net exporter of copyrighted works, it served our economic interest to join the international copyright community, but then only on our own terms, as reflected in the Universal Copyright Convention. Today, for our authors, artists and publishers to obtain protection in Berne countries that do not belong to the UCC, they must sneak in through the back door-hardly an inspiring activity for nationals of a major economic and cultural power. Finally, let me turn to the question of what would be required to adjust U.S. law to Berne standards. In this connection, I would just like to describe two methodologies for Congress to employ in addressing these issues. First, there is an obvious connection between, on the one hand, the dollars and cents and the ethical sense of adherence and, on the other hand, the precise way that we adjust our law for purposes of adherence. The author's rights of integrity and paternity offer an example. H.R. 1623 and the administration bill show two ways to handle the question. H.R. 1623 expressly incorporates these two moral rights into federal law while the administration bill relies on the existing body of state and federal law. Either approach would, in my judgment, meet the standards of Berne. But the two approaches differ in how they would meet those standards. H.R. 1623 has a high ethical quotient in effectively restating the integrity and paternity principles from the text of Berne. Arguably, though, it introduces some uncertainty into the law by creating what some perceive as a new doctrine into the act and, consequently, is perceived to have some costs. The administration bill, by contrast, has a lower ethical quotient-if it can be called that-in the sense that it does no more then embody present practice, present law, but at the same time it has a lower dollar and cents cost in the sense that it introduces less uncertainty in the law. All it does is embody the present uncertainty in the law. The second methodological point that will be useful to keep in mind when addressing the question of adjusting U.S. law to meet Berne's standards is that they are just that-standards. Specifically, Berne's standards consist of three elements: the express princi ples aid down in the text of the Convention; the particular copyright laws of the Convention's member states; and the practices actually followed in member states. To read Berne as consisting only of textual principle, and to exclude the national laws and practices that inform these principles, would be to mistake the book for its table of contents. The fact that Berne consists of standards, and that these standards are sufficiently flexible to accommodate the often disparate laws and practices of its member states, means that the Convention leaves ample room for preserving the American copyright tradition of balancing the incentives needed for authors and publishers against the interests of consumers in access to copyrighted works. Thus, for example, I believe that we would be in full compliance with Berne if our law gave no greater protection to architectural works than it presently does, and if we retained the registration requirement as a check on access to the judicial process. When I think of Berne, and of the Berne Union, in a larger frame, the picture that most frequently recurs is of a great number of ships-some large, some small, some grand, some modestmoored to a dock. There are as many differences between the ships as there are cultural, economic and political differences between nations. But there are important similarities, too. And most important, all of the ships, grand or modest, and whatever their differences, rise and fall with the same tide. I would be happy to take any questions, Mr. Chairman. [The statement of Paul Goldstein follows:] Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice Committee on the Judiciary House of Representatives 10 February 1988 Statement of Paul Goldstein Stella W. & Ira S. Lillick Professor of Law Stanford University on H.R. 1623 and H.R. 2962 Mr. Chairman, members of the Subcommittee, my name is Paul Goldstein. I am the Stella W. and Ira S. Lillick Professor of Law at Stanford University. the subject of H.R. 1623, I speak strictly for myself and not on behalf of any client, organization or institution. In testifying before you today on My testimony divides into three parts. The first two parts draw directly on the testimony previously presented to your Subcommittee and distills two central themes: the dollars and cents of adhering to Berne and the ethical sense of adhering to Berne. The third part of my testimony addresses questions to be considered in adjusting United States law to meet Berne standards. Before addressing these issues, two preliminary points are in order. First, Mr. Chairman, in reviewing the testimony presented to your Subcommittee I was struck by the depth and |