was changed from colonies to States. Our States had two Presidents during that 4-year period. It is a very interesting period in history, and I sometimes think it would be well if our young people today would review just what we went through at that time. South Carolina and Maryland were two of the leaders in the whole Nation, even that far back, and we are proud of their history and we are proud of what has been accomplished. We are proud of what our country has accomplished.

And thank you again, Mr. Chairman, for your kindness.
Senator MATHIAS. Thank you, Mr. Chairman.

Let me also recognize the distinguished Senator from Vermont. He has shown a high degree of interest in the subject of the protection of intellectual property and provided great leadership for this committee.

Senator LEAHY. Thank you, Mr. Chairman.

I too am glad to see our distinguished witness here today and am sorry that I cannot provide better weather for him.

Senator MATHIAS. We wanted him to feel at home.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S.
SENATOR FROM THE STATE OF VERMONT

Senator LEAHY. I have been in Berne when the weather has been similar to this. I know what you mean.

The Berne Convention, formulated in 1886, is the world's oldest multilateral copyright convention. The United States did not ratify Berne because the differences with our own domestic copyright law seemed too wide to bridge. But the world has changed a great deal in that 100 years, and today transportation technology has raised piracy to a high art. America's economic future will depend more and more on creative imagination and less and less on the production of heavy industrial exports.

If the world moves toward general indifference about the protection of innovation and creativity, the United States stands to lose a great deal. We have this need to balance proprietary interests on the one hand and consumer interests on the other, and the virtual revolution of new technology has heightened the need for public confidence and fairness in that balance.

I think what we might do during the hearing will help the degree of that confidence. So we will begin our view of the Berne Convention with the conviction that the International Copyright Committee has a deep and real stake in a regime of copyright law with significant elements of uniformity, but that the United States has a need, no less important, to balance the rights of creators with those of consumers.

I realize we are short on time, so I will put my whole statement in the record. I want to conclude by saying: we are considering whether the interest of the American participation in Berne outweighs the ongoing needs of the U.S. copyright owners and consumers under the current American laws permitted by the UCC. I think that is why we are fortunate in having Dr. Bogsch here. For more than three decades, Doctor, you have been the central figure in promoting international protection of intellectual property. You

are sort of an international intellectual property yourself in that regard. [Laughter.]

We do not have anybody more knowledgeable, Mr. Chairman, to begin these hearings. So this member of little knowledge will shut up and let somebody of great knowledge speak.

[The following statement was submitted for the record:]

PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY

WE ARE ABOUT TO TAKE UP A QUESTION THAT HAS REALLY BEEN BEFORE US FOR NEARLY 100 YEARS, AND YET HAS NEVER BEEN MORE

TIMELY.

THE BERNE CONVENTION WAS FORMULATED IN 1886 AND IS THE WORLD'S OLDEST MULTILATERAL COPYRIGHT CONVENTION. THE UNITED STATES HAS NOT RATIFIED BERNE, PRINCIPALLY BECAUSE DIFFERENCES WITH OUR OWN DOMESTIC COPYRIGHT LAW HAVE ALWAYS SEEMED TOO WIDE TO BRIDGE AND TOO IMPORTANT TO ELIMINATE BY CONFORMING TO THIS INTERNATIONAL MODEL, EVEN AS IT HAS EVOLVED OVER TIME.

BUT IF THE BERNE CONVENTION HAS CHANGED SINCE 1886, THE WORLD AROUND IT HAS CHANGED MUCH MORE. AND ONE OF THE REASONS TODAY'S HEARING IS SO IMPORTANT IS THE RENEWED FOCUS IN THE UNITED STATES AND ELSEWHERE ON PROTECTING CREATIVITY AS THE MOST

IMPORTANT COMMODITY IN OUR GLOBAL COMMUNITY.

A HUNDRED YEARS AGO, THE TARGET OF COPYRIGHT LAW WAS THE PROTECTION OF LITERARY WORKS IN A WORLD WHERE THE FACT OF AUTHORSHIP AND THE ACT OF INFRINGEMENT WERE BOTH WELL-DEFINED.

TODAY TRANSPORTATION AND TECHNOLOGY HAVE RAISED PIRACY TO A HIGH ART AT THE VERY MOMENT IN HISTORY WHEN AMERICA'S ECONOMIC FUTURE WILL SURELY DEPEND MORE AND MORE ON CREATIVE IMAGINATION, AND LESS AND LESS ON THE PRODUCTION OF HEAVY INDUSTRIAL EXPORTS.

THE EXPORT VALUE OF AMERICAN MOTION PICTURES NOW EXCEEDS THE VALUE OF OUR STEEL EXPORTS, AND WHILE LOW-COST CLOTHING AND HIGH-TECHNOLOGY PRODUCTS CAN BE PRODUCED MORE CHEAPLY IN THE FAR EAST, WE STILL LEAD THE WORLD IN FASHIONING NEW AND ATTRACTIVE STYLES AND THE VERY LATEST IN STATE-OF-THE-ART TECHNOLOGY.

IF THE WORLD MOVES TOWARD GENERAL INDIFFERENCE ABOUT THE

PROTECTION OF INNOVATION AND CREATIVITY, THE UNITED STATES WILL

STAND TO LOSE A GREAT DEAL.

AND WHILE THE BERNE CONVENTION SPEAKS ONLY OF COPYRIGHT
PROTECTION, IT IS THE OLDEST INSTRUMENT OF ITS KIND IN THE WORLD
AND AN INDICATOR OF THE WILLINGNESS OF THE INTERNATIONAL
COMMUNITY TO TAKE SERIOUSLY THE PROBLEM OF PROTECTING CREATIVITY.

SOME OF THE HISTORIC OBJECTIONS TO ADHERENCE TO THE BERNE
CONVENTION WERE BASED ON A PERCEPTION THAT IT MAY HAVE WEIGHED
THE INTERESTS OF COPYRIGHT OWNERS TOO HEAVILY AND THE INTERESTS
OF USERS AND THE PUBLIC TOO LIGHTLY.

THE NEED TO BALANCE PROPRIETARY INTERESTS ON THE ONE HAND
AND CONSUMER INTERESTS ON THE OTHER IS A FUNDAMENTAL ONE, AND THE
VIRTUAL REVOLUTION IN NEW TECHNOLOGY HAS HEIGHTENED THE NEED FOR

PUBLIC CONFIDENCE IN THE FAIRNESS OF THAT BALANCING.

THIS IS

THE COMPUTER CHIP PROTECTION LEGISLATION WHICH WE ADOPTED
LAST YEAR IS A VERY GOOD EXAMPLE OF THE PROBLEM.
TECHNOLOGY THAT HAS FOREVER CHANGED THE WAY WE STORE AND TRANSMIT
INFORMATION, THE WAY WE DESIGN TOOLS, THE WAY WE ANALYZE DATA

FROM OUTER SPACE, AND THE WAY WE CONDUCT NEARLY ALL OF OUR
TRANSACTIONS IN BUSINESS.

YET BEFORE LAST YEAR NO ONE COULD SAY FOR CERTAIN WHETHER
THIS REVOLUTIONARY DEVICE FELL WITHIN THE AMBIT OF COPYRIGHT OR
PATENT LAW. WAS THE COMPUTER CHIP A LITERARY WORK OR AN
INVENTION?

IN THE END WE HAD TO FASHION A NEW REGIME OF PROTECTION THAT
REWARDED INNOVATION BUT DID NOT NEGLECT THE INTERESTS OF BOTH
THOSE WHO NEEDED ACCESS TO THE MOST MODERN IMPROVEMENTS IN CHIP
TECHNOLOGY AND THOSE WHO WOULD FACE UNDUE RISKS IF THEY BROUGHT
SIMILAR, BUT NON-INFRINGING TECHNOLOGY INTO THE MARKETPLACE.

WE HAVEN'T SEEN THE END OF PROPRIETARY RIGHTS PROBLEMS

GENERATED BY NEW TECHNOLOGY.

WE'VE HARDLY SEEN THE BEGINNING.

AND SO WE WILL BEGIN OUR VIEW OF THE BERNE CONVENTION WITH THE
CONVICTION THAT THE INTERNATIONAL COMMUNITY HAS A DEEP AND REAL

STAKE

--

AS NEVER BEFORE

--

IN A REGIME OF COPYRIGHT LAW WITH

SIGNIFICANT ELEMENTS OF UNIFORMITY, BUT THAT THE UNITED STATES

THERE ARE SOME SPECIFIC ISSUES GERMANE TO THE TEXT OF THE

BERNE CONVENTION THAT WE OUGHT TO CONSIDER.

OUR PRESENT COPYRIGHT LAW REQUIRES NOTICE THAT THE WORK IS
UNDER COPYRIGHT, AND EVEN AFTER THE 1976 REWRITE OF OUR LAW, THIS
PROVISION STILL IS INCONSISTENT WITH THE BERNE CONVENTION

PROHIBITION AGAINST SUCH FORMALITIES.

THE REQUIREMENT THAT A WORK BE REGISTERED WITH THE COPYRIGHT
OFFICE PRIOR TO BRINGING AN INFRINGEMENT SUIT IS VERY LIKELY
PROHIBITED BY THE CONVENTION.

A THIRD REQUIREMENT IN OUR LAW THAT IS INCONSISTENT WITH
BERNE IS THE SO-CALLED MANUFACTURING CLAUSE THE REQUIREMENT
THAT CERTAIN WORKS PRODUCED BY AMERICANS BE FIRST PRINTED
DOMESTICALLY. WHEN THIS CLAUSE WAS DUE TO EXPIRE IN
LEARNED THAT THERE WERE MANY WHO CONSIDERED THIS PROVISION
ESSENTIAL TO THE HEALTH OF THE AMERICAN BOOK PRINTING INDUSTRY.

1982 WE

FINALLY, OUR LAW CONTAINS A REQUIREMENT THAT COPYRIGHT
OWNERS DEPOSIT TWO COPIES OF THEIR WORK WITH THE LIBRARY OF
CONGRESS.

THIS DEPOSIT REQUIREMENT IS CRITICAL TO THE MAINTENANCE BY
THE LIBRARY OF CONGRESS OF A COMPLETE COLLECTION OF ALL
COPYRIGHTED WORKS. ANY CHANGE IN OUR LAW THAT WOULD THREATEN

THIS COMPLETENESS WOULD FRANKLY HAVE TO HAVE VERY STRONG

JUSTIFICATION.