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THE BERNE CONVENTION IMPLEMENTATION ACT OF 1987 The SPEAKER pro tempore. Under a previous order of the House, the genBleman from Wisconsin Mr. KASTENBEER) is recognized for 15 minutes.

Mr. EASTERMETER. Mr. Speaker, 11 years ago Congress passed the Copyright Act of 1976, the first general revision of our copyright law since 1909. We did so only after years of work-starting in the early fifties, continuing with 33 days of hearings and 31 days of markup in 1965, and ending with 17 days of hearings and 25 days of markup in 1975-76. I committed much of my first 18 years in Congress to this endeavor.

The Copyright Act of 1976 was a bipartisan legislative achievement of the first magnitude. Legislators of both parties understood that copyright leg. islation raises unique difficulties. While a relatively obscure discipline. copyright touches every American in their homes, schools, libraries, and workplaces. Determining the scope of a las which deeply affects how all of us may enjoy books, films, television programming, computer software, information products and services. music, and the visual arts requires great caution, particularly in a rapidly changing society such as ours that seeks both the free flow of Informa. tion and the free marketplace.

With the memory of the 1976 revision still fresh in mind, I am introducIng legislation today to amend the 1976 Copyright Act. Although narrow in scope and seemingly technical. these amendments contemplate funda. mental changes in our copyright system. My legislation responds to the same "brooding presence" that has lurked in the background of U.S. copy. right legislation for 100 years-the Berne Convention for the Protection of Literary and Artistic Works. In many ways we drafted and passed the 1976 act with a weather eye on Berne. The bill I introduce today-the Berne Convention Implementation Act of 1987-removes from law provisions incompatible with the proscriptions of the Berne Convention-as revised at

Parts on July 24, 1971—and adds to our law provisions required by that convention net now present in the statute.

The objective of the bill is simple: To permit the adherence of the United States to the Berne Convention, if. after hearings and consultations, we determine that Berne adherence on balance serves the interests of this country and its citizens. I am honored to have Mr. MOORHEAD join zne as a cosponsor. This kind of bipartisan tradi tion reaches back to the 1976 act. I am aware of the administration's conceptual support for adherence to Berne and I look forward to working together with the executive branch on the implementing legislation. I also antici. pate a close working relationship with the World Intellectual Property Orga nization (WIPO) and its director gen eral, Dr. Arpad Bogach, on this important subject. In preparing this bill. I have been guided by the hard-learned lessons of history-both the history of our domestic copyright revision strug gles and that of our several unsuccess. ful efforts in the past to adhere to Berne.

My bill is based, in part, on the toil of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention. I would like the record to reflect the hard work of the members of that STOUP, and in particular those of its chairman, Irwin Karp, and of its guid Eng hand in the executive branch. Harvey Winter, from the Office of Business Practices in US Department of State. I would be remiss if I did not mention the efforts last Congress of

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Senator Charles McC. Mathias, Jr.. who introduced similar legislation in the Senate.

Like our law, the Berne Convention has changed over time. Ita 76 adher ents now include most of the industrialized world, a number of developing countries, and a few nations in Eastern Europe. The United States, the Soviet Union, and the People's Republic of China do not adhere. The United States and the Soviet Union along

with

tions are no

otherwise problematis

unclear, or

The interest in adherence to the Berne Convention that sparked this initiative is rooted in part in the desire to promote the international protection of works of American authors. This arguably would be achieved, by having the United States embrace particular legal rules accepted by 76 na tions, including our major trading partners in Western Europe, Canada, and Japan. But we now have copyright relations with most, if not all, of these states by virtue of the Universal Copyright Convention; and, Berne membership would not, by itself, increase the level of protection we now enjoy in those states.

Upon closer scrutiny, the benefit most frequently pointed to in support of United States adherence to the Berne Convention appears to be enhanced political credibility in our global effort to strengthen copyright norms, to suppress piracy, and to secure in all the countries of the world a realistic minimum standard of protection for creative works. A major forum in which this policy objective is being sought is the Uruguay round of the General Agreement on Tariffs and Trade (GATT), where we are seeking the adoption of a code or standard of conduct relating to protection of intellectual property within the GATT.

Per copyrigh

that standard or

well be the minimum ecomen rights of the Berne Convention. And, if we join Berne, our trade negotiators around the world could insist on these standards as those that constitute quate protection for GATT M bilateral purposes.

While we all agree that protect our creative works abroad is often adequate, everyone does not agree that this is the case with respect to our own works under our own copy. right law. We are nevertheless being called upon to modify the equilibriam of our domestic copyright law in order to help secure better protection for our authors in other countries. We want to protect and promote the copy. right export earnings of U.S. industry, but we should not do so at the expense of the unique needs and traditions of our society and our preferences as to the proper mix of rights, limitations, and conditions we have come to rely on over the years.

The legislation I am introducing today seeks to raise all of the questions that must be asked for the fullest range of private and public interests to be aware of what Berne adherence will mean now and tomorrow. The goal of the bill is to stimulate debate about the issues and to further understanding about the Berne Convention in a democratic and open setting. I have never seen a copyright bill that failed to evoke some controversy, and this one will be no exception. It will stir debate within the framework of full public hearings, and give my subcommittee-the Subcommittee on Courts, Civil Liberties and the Admin. istration of Justice-the information it needs to decide how to proceed. The bill is a first draft and undoubtedly will undergo refinements.

The United States chose not to join the Berne union in the past because we did not then want for our society the kind of copyright laws that the convention required. A fresh look is needed, and I encourage my colleagues to do so.

This legislation was drafted after assessing both the level of Berne obligations under the current Paris act, conscious of the practices of those states party to Berne at a similar stage of development as the United States that generally share our values of free speech and artistic freedom. Also examined were the literally dozens of bills introduced over the last 60 years to bring the previous copyright laws into conformity with Berne. Conforming our law with Berne may not involve many major changes to the Copyright Act of 1976; it will, however. require Congress to move that act a few inches further along in several areas where the 1976 act stopped just short of a point of Berne compliance. We may also have to add a few rights proposed. but not accepted. in the 1976 revision. The ultimate political question may become whether or not the country is prepared to accept

coperisiat motions that were able emrely a decade ago.

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Copyright experts disagre extent to which we have current copyright law. What case, none of these experts fled before my subcommittee. I leak forward to giving them this ty in the very near futur issues must be confronted. ple, adherence to Berne will the elimination of the forma copyright notice; and, perha importantly, will preclude the conditioning of the existence author's copyright upon any formality. Many will feel this to be a just and long-overdue step: some will have doubts. Everyone must consider, however, whether the elimination of such formalities upsets the balance of rights and privileges copyright proprietors now live under and of which for malities have long been a part. Berne also appears to require some modifica tion of the compulsory license for the public performance of music on socalled Jukeboxes. Finally the moral rights section of the bill will engender lively debata.

In order to examine the Berne issue with some specificity, I am proposing a bill that would, if enacted, clearly place US. law in substantial compliance with the provisions of the treaty. My bill errs on the side of legislating compliance with Berne rather than remaining silent on the issues. During the hearing process, the subcommittee we will learn whether all of the proposed amendments are necessary and desirable, whether the treaty compels other changes as well, and whether adherence to the treaty is worth the price.

The proposed legislation clearly proceeds upon the presumption that the Berne Convention is not self-executing and requires implementing legislation. There is, as well, serious doubt as to whether copyright treaties such as the Berne Convention are constitutionally susceptible of self-execution in any event. Under article I, section 8 of the Constitution, the power to enact this Nation's copyright and patent laws is allocated exclusively to the Congress and this power is not diminished or qualified by any potential executive authority to conclude international copyright arrangements under which all or part of those benefits are extended to foreign nationals and their works.

Let me now turn to a description of the bill. It contains 16 sections.

Section 1 of the bill sets forth the short title: the "Berne Convention Implementation Act of 1987."

Section 2 provides, for drafting clar ity, that whenever in the proposed leg. islation an amendment is expressed in terms of an amendment to a section or other provision, the reference shall be considered to be made to a section or other provision of title 17, United States Code.

Section 3 ants forth several occuressional declarations, including First, that the Berne Convention not self executing under the Constitution and laws of the United States; second, that the proposed legislation together with

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current law, will enable the United Blates to meet its obligations as a nation adhering to the Berne ConvenLion and no further legislation will be needed: and third, the provisions of Berne shall be given effect under title 17. United States Code as amended, and shall not be directly enforceable in any action brought pursuant to the provisions of the Berne Convention Moelf.

In section 4, the bill would modify chapter 1 of 17. It would add definitions of "architectural works," "Berne Convention" and "Berne Convention work," to section 101. In the same section, the definition of "pictorial, graphic, and sculptural works" is modified expressly to exclude "architectural works."

In section 5, section 102(a) is amended to add "architectural works" to the list of types of copyrighted works. Although an aspect of the Berne Convention not examined with serious scrutiny by any group, the protection of architectural works appears to be required by the Berne Convention in a fashion not now fully available under title 17. Specifically, while rights holders in two-dimensional architectura! plans or blueprints may enjoy copy. right protection in such works as considered "pictorial" works, such a copyright has not extended to the exclusive right to control the building of the structure so depicted in three dimensions. The right of an architect to control the construction of his or her work is therefore given a basis in our Copyright Act by these amendments.

Section 6 of the bill relates to the national origin of Berne Convention works. It amends section 104 of title 17 in two ways: Protection for foreign works is explicitly extended to "Berne Convention works" and the proscripUon against self execution is codified. This letter codification is fundamental to the entire question of implemer.ting legislation and of adherence to the convention. It should be absolutely clear that all copyright rights at allable in courts in the United States must be found exclusively within the provisions of title 17. It should also be clear that State law rights that are not preempted by section 301 are not af fected in any way by this legislation or by Berne adherence.

Section 7 sets forth a major change in chapter 1 of the Copyright Act This change is found in a new section 186a, the "moral rights of the author" section. This section creates important Berne rights in works other than