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Article 36 of Berne; court held that treaty was not selfexecuting).

In view of the importance of the issue, we believe that appropriate language, expressing the view of Congress that Berne is not self-executing, be included in the implementing legislation itself and explained in the accompanying committee reports. We note that all three pending bills include such statements.

Notice. The present Copyright Act (17 U.S.C. Section 401) contains notice requirements for certain categories of published works. The failure to comply with these requirements will, unless one of the Section 405 curative provisions apply, result in forfeiture of protection. Section 403 requires that where published works consist preponderantly of one or more works of the United States Government, a statement identifying the non-governmental portions must be included. Section 404 contains notice provisions for contributions to collective works. Sections 405 and 406 concern omissions or errors in the notice. There is a separate notice requirement in section 402 for sound recordings. However, because it is unclear whether sound recordings are subject to Berne protection in light of their protection under the Phonogram Convention, Section 402 is not addressed here.

One of the bedrocks of Berne is Article 5(2), which prohibits the enjoyment and exercise of rights conditioned upon compliance with "any formality." We believe that the above-noted provisions (with the possible exception of Section 403) are incompatible with Article 5(2) of Berne and must be repealed.

We strongly disagree with suggestions that there should be a "two-tier" approach to this (or any other) issue under which certain provisions of our laws incompatible with Berne would be altered for works of foreign origin but retained for works of American origin. The existence of such a two-tiered approach under which United States works are treated as second class citizens in their own country is, in our view, most undesirable from both policy and moral perspectives.

We believe

notice is no Thus, no harm

that mandatory copyright longer necessary, desirable, or beneficial. will be done to American Copyright Law by repeal of these provisions. All three pending bills contain acceptable repeal of the mandatory notice requirement.

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Jukebox Compulsory License. Section 116 provides a compulsory license for the public performance of nondramatic musical works embodied in phonorecords "coin-operated phonorecord players" or jukeboxes. The compulsory license fee was originally set by the 1976 Copyright Act, was subsequently adjusted by the Copyright Royalty Tribunal in accordance with the statute, and is currently the subject of a voluntary agreement between the copyright owners of musical works, represented by the performing rights organizations, and the jukebox operators, represented by their trade association.

Article 11(1) of the Berne Convention states that authors of musical works shall have the exclusive right of authorizing: (i) the public performance of their works, including such public performance by any means or process; (ii) any communication to the public of the performance of their works.

Section 116 is therefore incompatible with Article 11(1) of Berne since it permits the public performance of musical compositions without the consent of the copyright owners thereof. It must be repealed. As with the notice requirements, we disagree with suggestions for a two-tier approach to Section 116 incompatibility, under which works of United States origin would be subject to compulsory licensing but works of foreign origin would not.

Each of the three bills follows the same basic approach to the jukebox compulsory license: the current provisions are repealed, and voluntary negotiations between the parties substituted. Should those negotiated fail, the Copyright Royalty Tribunal is empowered to arbitrate. The bills differ in minor procedural details for such Tribunal arbitration. We believe the basic approach of all three bills is acceptable, and suggest that the Tribunal procedures proposed by the Leahy bill, S. 1301, are best because of the freedom of action they confer upon the Tribunal. Such freedom of action is most compatible with the intent and spirit of Berne.

Moral Rights. Berne contains provisions setting standards for certain rights commonly known as "moral rights," such as rights of "paternity" in the work, objection to mutilation of the work, and the like. The issue of whether American Federal law must be modified to recognize such moral rights has generated controversy. Your subcommittee hearings have explored this issue in

considerable detail.

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Based on existing substantive American law (including State common law), precedents in other Berne countries (such as the United Kingdom), and even the advice of the Director-General of WIPO, which administrates Berne, we agree with the widely shared view that no change in American law is required regarding moral rights to effect United States adherence to Berne. We fully support the approaches to this issue found in H. R. 2962 and S. 1301.

and

Renewal and Retroactivity. Among the most difficult compatibility issues are those surrounding renewal and retroactivity. These issues have been thoroughly perceptively analyzed in Chapters X and XI of the final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention. We believe the most significant question is whether, under Berne Articles 18 (1) and (2), the United States would be required to grant retroactive protection to works that are in the public domain in the United States but are not in the public domain in their Berne country of origin. Such a result is raised by the Article 18(1) requirement that protection must be granted to all works which "have not fallen into the public domain in the country of origin through the expiry of term of protection."

Countless works not in the public domain in their Berne country of origin are in the public domain in the United States for failure to comply with formalities such as renewal, notice, and the manufacturing clause. If Article 18(1) were read literally, the United States would have to protect such works retroactively. Such a law would raise very serious Constitutional questions.

However, there is a way out of what is ultimately only a transitional problem, suggested at a 1978 WIPO Group of Consultants' meeting on problems surrounding United States Adherence to Berne, viz., to treat the pre-1976 Act common law term of protection as the Article 18 "term of protection which was previously granted" and to then state that the common law term expired at the moment the works in question were published without complying with the relevant United States requirements.

In light of the substantial consitutional, policy, and practical problems raised by this issue, the transitional nature of the issue, and the apparent willingness of WIPO experts to accept (indeed to suggest) this solution, favor it as the best possible solution under the circumstances.

we

In conclusion,

adherence to Berne.

we

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strongly support United States We would be very happy to expand on

the views we have expressed here in support of such adherence.

This statement for the record is written on behalf of our client, Hal Roach Studios, Inc. Hal Roach Studios produces new programming for television and owns the copyright in a large film library, including such classics as the Laurel and Hardy films. Through its affiliated company Colorization, Inc., Hal Roach has led the way to convert black-and-white movies and television series into color, these including films from its own archives as well as other public domain works.

Hal Roach Studios strongly believes that the United States should not join the Berne Convention. Berne Convention adherence would necessarily inject new moral rights laws and policies into the law of this country which would be contrary to the vast body of copyright law and policies which have been carefully shaped over time by Congress and the courts. Adherence to Berne would also drastically change established contractual relationships, upset expectations and would cause unnecessary uncertainty and litigation in the artistic community and entertainment marketplace.