-2 The Berne Convention Would Inject New Moral Rights Law Into This Country Should the United States become a member of the Berne convention it would be required to adhere to the 1971 Paris text. Article 6bis of that text states in pertinent part that, "[i]ndependently of the author's economic rights and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which could be prejudicial to his honor or reputation." Article 6bis therefore, requires that its member nations will have in place moral rights laws to provide the protection stated above. However, there is currently no moral rights protection in this country equivalent to that set forth in Article 6bis. Certainly, the state moral rights legislation which exists today provides limited protection, governs only certain kinds of works, and is in force in only a handful of states. Moreover, the Copyright Act itself does not provide any moral rights law. To the contrary, the Copyright Act permits, for example, an author to transfer any and all rights away and presumes that the employer rather than the creator-in-fact may claim authorship and control the uses of the copyrighted work. The Lanham Act prevents only the false designation of origin. Although this act has been interpreted as an elastic piece of legislation, it would strain to the bursting point if it were to try to provide moral rights protection contemplated by Article 6bis. Thus, because there is no existing body of moral rights law, the U.S. would be required not merely acknowledge that there are existing moral rights provisions but must over time expand the law in those areas to create those rights. Courts may very well look to the moral rights laws of other Berne members for guidance. In this way, the provisions of Article 6bis could in fact be de facto self-executing. Moral Rights are Antithetical to If introduced into the United States, moral rights principles as articulated in Article 6bis could run contrary to our copyright policies, and would upset contractual relationship based on those policies, which have evolved over many years. Berne countries such as France, moral rights have developed over In -3 time through years of tradition. Contractual relationships have been built with those rights clearly in the mind of the parties. In the United States however, contractual relationships have been built with the expectation of the existing and long-standing copyright law, policy and legal precedent which emphasize the freedom of contract and property. It would be extremely unfair and unproductive to upset these established contractual relationships and economic investments by introducing moral rights principles into our system. In our litigious society, such action would surely result in an increased and unnecessary amount of litigation. Congress would certainly not want this unintended result. As a practical matter, if "authors" were in fact able to object to a modification of their work as permitted under Article 6bis this could drastically interfere with the production of newspapers, motion pictures, television programming and newscasts. This is especially true if, as has been maintained in testimony before your subcommittee, moral rights are personal to the author and are not waivable or alienable. The many potential "authors" of a work, which in a movie, for example, could be one of many screen writers, the author of the underlying novel, the director or the producer, may not agree what modifications may be permitted. In fact, it would not be inconceivable that a set or costume designer or a composer of a musical score who are "authors" of certain elements of a movie, would not agree to modification of their work. Moreover, despite what has been argued by the Directors Guild of America, there is nothing in the language of Article 6bis which would limit moral rights protection to only those changes made after the work has been published. Therefore, any of these individuals could hold up the production and distribution of, and deny public access to, works which have been modified after the "authors'" original efforts. This is so, even though the works are funded by an employer or contractor. Congress Should Not Disrupt Our System Which policy, Congress is In formulating copyright law and empowered under Article 1, Section 8, Clause 8, "to promote the Progress of Science and useful Arts." The purpose of copyright protection is not to reward authors as an end in itself but rather, to produce works, especially those which will be appreciated and observed. The introduction of moral rights into this country would only serve to frustrate, and not further this goal. In the United States, legal precedent permits authors to produce works for hire and to assign away copyrights. This is -4 supported by a long tradition of freedom to contract. Without this freedom, adaptations (from novel to movie, from black-andwhite to color) could be much more difficult to create and the public would be the one hurt by not having access to them. The Directors Guild of America has testified before your subcommittee that "[o]ur art and our software, our music and our literature and motion pictures are of as high or higher quality as anyone elses..." 1/ Hal Roach Studios wholeheartedly agrees. These works are flourishing in a system which already rewards the author and promotes the arts in the best possible way. The testimony which has been submitted into the record underscores the danger of joining the Berne Convention and the serious disruptions adherence could cause. Congress would certainly not wish to make artistic works more difficult to produce or to increase litigation over "moral rights" issues. Our system should not be upset by adherence to a convention whose ramifications are at best uncertain and at worse, disastrous. Respectfully submitted, HAL ROACH STUDIOS, INC. By: Grover C. Cooper (il.fford M. Harrington by AICE Clifford M. Harrington Ann K. Ford 1/ See Oral Statement of Sydney Pollack before the Subcommittee Attached is the Statement of the Association of American Publishers on the issue of U.S. adherence to Berne and implementing legislation. We offer these comments to assist in your committee's consideration of this issue. We would be happy to respond to any questions. Sincerely, Melisted &. Eclistes Nicholas A. Veliotes NAV/ab CC: Members of the Subcommittee on Courts, Civil Liberties and - The Association of American Publishers represents some 250 publishers of books, serials, looseleaf services, audio visual and educational materials, computer software and online databases. Our interest in international copyright is vital and continues to grow. Many of our members have foreign branches, divisions, or subsidiaries; a few of our members are themselves foreign corporations. Virtually all have some international connection they may sell their publications overseas, license their works for translation and reproduction abroad, or acquire tangible products or intellectual property rights from foreign authors and publishers. Our industry's business abroad is a great national asset, both in fostering the global flow of ideas and information, and in contributing substantially to a favorable balance of commerce in intellectucal property. Our industry's security at home its reliance on reasonable laws is vital to its domestic and foreign business expectations. Our members' perceptions of how Berne adherence impacts on their divergent interests affect our submission to you. - - As you are already well aware, our members are not united on the subject of United States adherence to the Berne Convention, and the AAP today does not take a position on this ultimate question. |