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recent case wherein Berne required changes in a major member's

Mr. STEINHILBER. No. What I was sort of relating to, when we have 30 organizations together in a room and we studied the issue, as I say, over a three-year period, the question was one of an uneasy feeling. The uneasy feeling was where does this trip lead us?

Our concern was, okay, we joined Berne now as Berne exists now and we are comfortable with it, but what is going to happen two years, four years, five years from now if Berne, then, begins to look at changes? Then, are we going to be whip-sawed with changes in the internationals coming back and saying, "Well, if we are supporting Berne, we should be making those changes," even though, as I understand, you can join Berne after a certain period of time and don't have to accept the new changes. I think the pressure is always to accept.

Therefore, we are just making our position known in advance. We reserve that right and we are also basically taking the position that we want to make sure that everyone, whoever is involved in Berne, particularly the Copyright Office, that we are concerned with the right of the general public.

Mr. KASTENMEIER. You do express, I guess, concern that users, which your association is certainly a member, are not necessarily represented in Berne deliberations. That may well be a problem of who is appointed to be members of the U.S. delegation to the World Intellectual Property Organization and so forth.

Did you ever apprise the Register of Copyrights or the State Department, maybe Mr. Winter?

Mr. STEINHILBER. We have, in fact. Right now, with respect to the State Department, Mr. Winter has placed us on his list of advisors.-When he has his meetings, we are invited to his meetings. The answer is yes, our relationship with both organizations are good at this particular moment, but there is always a question of what happens when there is a change in the Register.

We want to make sure that everybody understands that the Educators' Ad Hoc Committee came into being in 1964 and I guess it is the longer ad hoc committee in record because every time we think our work is done, we find somehow this issue reappears and we have to keep going. We will continue our vigilence. We are now in the process of looking to our new leadership. After I leave, there is going to be another individual here, just as the NEA and ACE represented it before.

Mr. KASTENMEIER. As, I think, with many groups and organizations, your organization takes the position that, as you see it, this adherence will be relatively neutral with respect to the organization, but what probably causes some concern is that it will require monitoring and vigilance on your part.

I would observe that it may be the case that, as far as your organization is concerned, trade negotiations with foreign countries on intellectual property might take positions well beyond U.S. law, for example, fair use or library photocopying. That is to say, it might set higher standards in the trade context than we actually here in the domestic intellectual property context in the United States.

That may be something you would have to monitor as well, it seems to me.

Mr. STEINHILBER. We are well aware that, indeed, we have already sent to the U.S. Department of Commerce some of our concerns which we supplied letters for that correspondence with your counsel because I dare say that is an issue and will continue to be

one.

Mr. KASTENMEIER. Mr. Goldberg, I think I understand your position on formalities and registration. You obviously clearly oppose a two-tier approach and have indicated general support for the two bills in their present form, with respect to formalities, as I recall. Mr. GOLDBERG. As a general matter, yes, Mr. Chairman. Mr. KASTENMEIER. Yes.

Maybe you know-I do not-do any of the other Berne members have a two-tiered approach?

Mr. GOLDBERG. I don't believe that there is a specific. two-tier approach that has any widespread adoption among Berne members, but if I may, I would like to look into that and get back to you, Mr. Chairman.

[Additional materials from Mr. Goldberg follow:]

Supplement to the Statement of Morton David Goldberg for the Information Industry Association before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Committee on the Judiciary, U.S. House of Representatives, February 10, 1988.

(Reference: Transcript of Hearing, p. 82, lines 1917-20)

BERNE COUNTRIES WITH A TWO-TIERED APPROACH

TO COPYRIGHT FORMALITIES

Some Berne members do have a two-tiered approach with respect to copyright formalities. In other words, they require compliance with their own copyright formalities for works of domestic origin, but not for works of foreign origin. We discuss below examples of such countries.1

Argentina

Argentina has a requirement in its copyright law that copyrighted works be deposited with a National Copyright Registry:

1The countries mentioned here are only examples; they are not intended to comprise a comprehensive list of all Berne countries which take a two-tiered approach with respect to any formality.

Article 57. The publisher of works included
in Article 1 must, within three months of
publication, deposit at the National Copy-
right Registry three complete copies of every
published work. In the case of a de luxe
edition or of an edition not exceeding one
hundred copies, it shall be sufficient to
deposit one copy.

The same time-limit and conditions shall
apply to works printed in a foreign country
if they have a publisher in the Republic of
Argentina. In such cases the time-limit
shall run from the first day on which the
works are placed on sale in Argentine terri-
tory.

For works of painting, architecture, sculpture, etc., a sketch or photograph of the original shall be deposited, together with such supplementary particulars as permit of their identification.

For cinematographic films there shall be deposited an account of the plot, the dialogues, and photographs and descriptions of the principal scenes.

However, the copyright law expressly modifies for works published in foreign countries the requirements of Argentine formalities:

Article 13. All provisions of this Law, with the exception of those of Article 57, shall be equally applicable to scientific, artistic and literary works published in foreign countries, whatever may be the nationality of their authors, provided they belong to countries which recognize copyright.

Article 14. In order to secure the protection of Argentine law, the author of a foreign work shall, except as regards the requirements of Article 23 of this law concerning translation contracts, only need

to prove the fulfilment of the formalities
established for the protection of the work by
the laws of the country in which publication

took place.

Argentina Copyright Statute, Law No. 11.723 on Copyright, as

amended, reprinted in UNESCO/WIPO, Copyright Laws and Treaties of

the World (1987) ("CLTW").

Lebanon

The Lebanese copyright law has a requirement of deposit as a prerequisite to instituting actions before the courts, but it explicitly exempts foreign works "in accordance with the provisions of

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the

Berne Convention":

Article 158. The creation of a work
shall, without any other formality, give rise
to the right of literary and artistic copy-
right; but the exercise of this right shall
be subject to the formality of deposit.
Deposit is a pre-requisite to the institution
of action before the courts by the aggrieved
author, publisher, or successors in title.
Deposit may be effected before or after the
fact which gives rise to the action.

Notwithstanding the foregoing pro-
visions, the enjoyment and exercise through-
out the territory of the States under man-
date, of the literary and artistic copyright
of authors who are nationals (ressortissants)
of one of the countries of the Union shall,
in accordance with the provisions of Arti-
cle 4 [now Article 5] of the revised Berne
Convention, be free of all preliminary
formality. An action before the court
instituted by the injured author, publisher
or successors in title, shall be admissible
in all such cases.

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