3. U.S. Adherence Will Preserve Berne Protection for U.S. Works In Berne Countries and Gain Protection in 24 More Countries Opponents of U.S. adherence to Berne contend that we can remain outside the Convention and continue to obtain its benefits — without paying the minimal price of membership — through the so-called "back door." In making this argument, they recognize the value of Berne protection for U.S. works — as do the many U.S. copyright owners who use the "back door."5 But copyright experts who have had to struggle with the intricacies of "simultaneous publication" point out that proving it in foreign courts is often expensive, always burdensome and frequently impossible; the risk of more restrictive interpretation of the theory in some Berne countries increases; and some methods of publicly disseminating works may not even qualify for "back door" treatment. Indeed, countless authors, composers and artists—as well as small publishers—cannot with their limited means afford even to attempt "simultaneous publication" of their works outside the United States. For them, Berne protection through the "back door" is not an available alternative to protection through Berne adherence. It should also be noted that 24 Berne countries (including Egypt, Romania and Turkey) do not belong to the UCC another compelling reason for our entry into the Berne Convention. As Chairman Kastenmeier's statement stressed, U.S. adherence to Berne would "gain or clarify or improve our relations with 24 countries... with whom our copyright relations are now non-existent, unclear, or otherwise problematic." Copyright relations with those countries are important not merely because of their domestic use of U.S. works but even more so to prevent the export of unauthorized copies throughout the world. B. The United States Should Join Berne to Participate Effectively in its Management and in the Making of Policy in the International Copyright Community The United States, its Copyright Office and its Congressional Committees always have recognized the importance of Berne decisions to American authors and copyright industries. They attend important Berne meetings and revision conferences, but only in the role of observers with no voice, vote or influence on the Convention's deliberations. At the outset, one vital consequence of U.S. adherence must be emphasized. Revision of Berne requires a unanimous vote. If the United States is a member, it can veto a decision that would injure its interests. Vide: the United Nations Security Council. U.S. entry into Berne would give it the right, as a member, to participate effectively in the administration and management of the Convention, rather than hover at its door as a supplicant. A United States voice and vote at Berne are all the more important in this age of new technologies that are reshaping copyright and copyright media, and that have so internationalized the transmission and use of copyrighted works that their protection through an effective international copyright organization is essential. The only such organization is the Berne Convention. As Senator Leahy emphasized in introducing his Bill to implement Berne adherence (S. 1301, 100th Cong.), "vital American interests can be fully represented in the international copyright system only if we get off the sidelines and onto the playing field, by joining the Berne Convention." Our participation in Berne is even more essential because of our severely diminished role in UNESCO and the UCC. As Chairman Kastenmeier observed, "the United States has a seat on the committee that oversees the UCC, but, since we withdrew from UNESCO, we have a smaller voice, and no formal vote, in the overall planning and budgeting process affecting UCC-related activities." Opponents of U.S. adherence to Berne contend that our membership would be of no consequence because revision of Berne requires unanimity; and divisive factors, such as disparities in wealth and cultural differences, make it difficult to reach unanimous decisions. But even if this gloomy picture of Berne politics were accurate, these factors are affirmative reasons for the United States to join Berne and play an active role in its governance. 5Many US publishers and producers of copyrighted works spend substantial amounts each year to "simultaneously publish" their works in a Berne country (frequently Canada) to secure "back-door" protection, although the size of the market in that country may not otherwise justify the expenditure. If the United States joins Berne, they will be entitled to protection without using the "backdoor" and will save considerable sums. There are major copyright problems which many countries (in every camp) have a common need to resolve; predictions about the immutability of copyright positions of several countries have proven wrong; and disruptive factors only emphasize the need for effective leadership. One thing is obvious: the leadership of Berne in furthering copyright can only be strengthened by U.S. membership; it can only be weakened by U.S. refusal to adhere to the Convention. And, as already noted, U.S. failure to adhere costs it the essential veto power. C. Adherence to Berne Will Assist U.S. Trade Negotiations The United States failure to enter Berne has weakened its negotiating position with countries that are pirate centers. Our membership in Berne would strengthen that position, and could lead other nations with whom our copyright industries have been negotiating to enter the Convention. This view is shared by many in both the public and private sectors who have spent a substantial part of their recent professional careers in negotiating with nations where piracy has flourished. Their reading has consistently been that our entry into Berne will help the United States and industry negotiators obtain improved copyright protection in those jurisdictions. Indeed, many of these negotiators have indicated that their efforts to obtain more reasonable protection for United States works abroad is handicapped by an inherent hypocrisy: we have so far refused to join Berne, while taking advantage of its benefits and urging other nations to adhere to its standards. Opponents of Berne adherence contend incorrectly that our entry into Berne would have no direct impact on piracy. But even if their contention were correct, the United States stands to gain much from entering Berne. It stands to lose much from not entering, and it would incur considerable risk of retaliation from Berne members who have the potential for doing us considerable damage. D. U.S. Adherence to Berne is Essential to Our Effort to Obtain an Effective High Level of Copyright Protection under the GATT Some opponents of adherence have said that the General Agreement on Tariffs and Trade ("GATT") initiative with respect to intellectual property presents an opportunity to develop a new international code of minimum rights, importing from Berne the economic rights but omitting the moral rights. They suggest that the GATT initiative would make Berne superfluous if it succeeds, but they also concede that the initiative will be difficult to complete. This argument obscures the reality that GATT's effectiveness in this area depends on the level of copyright protection established by the Berne Convention. There is no prospect that GATT members will abandon Berne. There is considerable prospect that United States rejection of Berne membership would cause endless debate within GATT as to the levels of protection to be provided. And without our entry into Berne, a lower level of copyright protection might be the bitter fruit of the GATT initiative. As Ralph Oman, the Register of Copyrights, has noted: "Only the Berne Convention expressly reflects international copyright norms that industrialized, industrializing and several developing States all accept. Our trade specialists, then, view United States adherence to the Berne Convention as an unequivocal statement of national policy on the material content of international copyright and the kinds of rights that all nations should provide and respect." Obviously, for the United States to argue effectively for implementing Berne's standards of protection in a GATT code, the U.S. must join Berne. The United States, by far the largest exporter of copyrighted works, has the greatest stake in preserving Berne's higher levels of copyright protection as the standard of GATT protection. We take a great risk in compromising that protection if we refuse to adhere to Berne. E. Retroactivity Is Not an Obstacle to U.S. Adherence to Berne Under the Berne implementation bills which have been introduced in Congress, the United States would enter the Convention without providing retroactive protection for Berne works now in the U.S. public domain. Opponents of U.S. adherence to Berne contend that failure to grant retroactivity would hamper United States efforts to obtain retroactive protection, through bilateral negotiations, from nations which have denied or given meager protection to United States works. That contention is without merit. Clearly, if a choice had to be made, U.S. authors and copyright industries would be far better off if we joined Berne, even if a few countries denied retroactive protection to U.S. works. Our primary objective is to obtain adequate protection in those countries prospectively, and Berne adherence will help accomplish that primary objective. It also is possible and permissible under Berne - for us to negotiate retroactive protection in those countries without granting retroactive protection here to Berne works. F. Adherence to Berne Requires No Change in U.S. Law on Moral Rights Thus far, the only significant opposition to United States adherence to Berne has come from those few who contend that adherence would, somehow, expand the present scope of protection of authors' "moral rights" in the United States. There is no necessity, however, to insert a moral rights clause in our Copyright Act as a condition for U.S. membership in Berne. Senator Mathias' 1986 Bill (S. 2094, 99th Cong.) did not contain one; S. 1301 does not contain one; and the Administration's bill (H.R. 2962, 100th Cong., introduced by Representative Moorhead on behalf of himself and Representative Fish) does not contain one. H.R. 1623 does contain clauses which grant (and limit) moral rights, but those clauses are not required for Berne adherence. Three points deserve emphasis. First, the United States already complies with the Berne minimum requirement for moral rights. Indeed, actual enforcement of moral rights, regardless of labels, under common law and various statutes such as the Lanham Act frequently invoked to protect authors — is more rigorous in the United States today than it is in a number of Berne countries. Berne permits a wide range of moral rights enforcement; the Convention does not provide any means of redress but leaves that up to each individual member country. The choice by a few Berne countries to expand their moral rights protection beyond the Berne standard in no way obligates the United States to do so. Significantly, Dr. Arpad Bogsch, Director General of the World Intellectual Property Organization, which administers Berne, has stated that it is unnecessary for the United States to enact statutory provisions on moral rights to comply with Berne. In his letter of June 16, 1987 to the NCBC, a copy of which is attached, Dr. Bogsch states that United States common law and statutes such as section 43(a) of the Lanham Act "contain the necessary law to fulfil any obligation" under Berne to provide moral rights. Second, U.S. entry into Berne cannot incorporate greater or lesser "moral rights" protection into our law. Under our constitutional law, Berne is not a self-executing treaty, and the only Berne-related changes that can be made in our Copyright Act, other statutes or the common law are those that Congress enacts as part of the Berne implementing legislation. As Dr. Bogsch's letter points out, other Berne countries the United Kingdom, for example do not consider Berne to be "self-executing." Third, in the implementing legislation, Congress can state explicitly that Berne is not self-executing and that Berne does not in any way affect the present state of American law on moral rights.7 G. Adherence to Berne Would in No Way Affect American Freedom of Expression Some publishers have expressed "profound concerns about Berne" and anxiety that somehow "Berne is inimical to American principles of freedom of expression" because they fear that Article 17 of Berne upholds censorship by national governments. It does not. in almost the same words This same provision appears in the Pan American Copyright Convention of 1910, to which the United States has adhered for more than 75 years. A similar provision also appears in the 1950 Florence Agreement on the Importation of Educational, Scientific and Cultural Materials, to which we have also long adhered. The provision in Berne says only that the Convention "cannot in any way affect" the sovereignty of member countries on issues of freedom of expression. The Berne provision has not had any such effect on the many members of Berne who also value freedom of expression; and the similar Pan American and Florence provisions have had no such effect on us. 6Article 6bis of the Berne Convention provides in relevant part: "[T]he 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 would be prejudicial to his honor or reputation." 7 For example, it can do this, as S. 1301 does specifically, by formal Congressional findings and declarations that: (i) Berne is not self-executing, and Berne and any U.S. obligations under it are to be effective only pursuant to U.S. domestic law and not Berne itself; (ii) any U.S. obligations under Berne are fully met by the implementing legislation without any moral rights changes; and (iii) Berne and the implementing legislation neither reduce nor expand any rights under any other federal or state laws. WORLD INTELLECTUAL PROPERTY ORGANIZATION (784)-20 June 16, 1987 Dear Irwin, You let me know that the National Committee for the Berne Convention wished to hear my views on whether having statutory provisions on "moral rights" was a condition of being in conformity with the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 1971). In my view, it is not necessary for the United States of America to enact statutory provisions on moral rights in order to comply with Article 6bis of the Berne Convention. The requirements under this Article can be fulfilled not only by statutory provisions in a copyright statute but also by common law and other statutes. I believe that in the United States the common law and such statutes (Section 43(a) of the Lanham Act) contain the necessary law to fulfill any obligation for the United States under Article 6bis. There are several countries of the common law system, and among them the United Kingdom (that joined the Berne Convention exactly one hundred years ago), that are bound by the Berne Convention, including its Article 6bis, which have never had and do not have at the present time statutory provisions on moral rights. Such an absence of statutory provisions was, to my knowledge, never regarded by any United Kingdom or foreign court or government as a lack of compliance with the Berne Convention. It is to be noted and this is well known in legal circles that the United Kingdom, to mention only one example, does not consider the Berne Convention "self-executing" in the sense that one could rely on the provisions of the Berne Convention in any court proceeding in the United Kingdom. Parties before United Kingdom courts can only rely on the UK statutes and the common law of the United Kingdom. Sincerely yours, s/ Arpad Bogsch Director General Irwin Karp, Esq. 40 Woodland Drive Rye Brook, New York 10573 |