U.S. ADHERENCE TO THE BERNE CONVENTION THURSDAY, MAY 16, 1985 U.S. SENATE, SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS, Washington, DC. The subcommittee met at 9:40 a.m., in room SR-385, Russell Senate Office Building, Hon. Charles McC. Mathias, Jr. (chairman of the subcommittee) presiding. Also present: Senators Thurmond and Leahy. Staff present: Ralph Oman, chief counsel; Randolph Collins, professional staff; Pamela Batstone, chief clerk; Debbie Owen, general counsel to Senator Thurmond; John Podesta, counsel to Senator Leahy; Beverly McKittrick, counsel to Senator Laxalt; and Karl Hampe, staff assistant to Senator Simpson. OPENING STATEMENT OF HON. CHARLES MCC. MATHIAS, JR., A U.S. SENATOR FROM THE STATE OF MARYLAND; CHAIRMAN, SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS Senator MATHIAS. The subcommittee will come to order. The Subcommittee on Patents, Copyrights and Trademarks is meeting today to examine the implications, both domestic and international, of U.S. adherence to the International Union for the Protection of Literary and Artistic Works, commonly known as the Berne Convention. There is a bittersweet quality to the meeting of this subcommittee in this year, 1985. Fifty years ago on Friday, April 19, 1935, the U.S. Senate actually ratified the Berne Convention without a single dissenting vote. The following Monday the Senate moved by unanimous consent to reconsider the vote and the treaty was returned to the Executive Calendar to await action on the implementing legislation. That proves a point that I have made over the years: Things that pass by unanimous consent in the Senate are usually suspect. [Laughter.] Those that pass after a vigorous debate or by a 60-to-40 or 65-to35 vote are apt to be much sounder legislation. In any event, here we are, 50 years later almost to the day, and the world's greatest deliberative body is still talking about the Berne Convention. I am happy that the latest installment of the continuing debate is now underway, and I am very happy to see the distinguished group of participants that have gathered here today. This hearing will be the first of a series. We have asked witnesses from the public sector to testify. In later hearings the Sub (1) committee will hear from private sector representatives, public interest groups, and academicians. The subcommittee wants to know what changes, if any, would be necessary in U.S. law to bring the United States in conformation with the Berne Convention. We want to know what advantages would accrue to the United States if we join the Berne Union. If there are disadvantages, we need to hear about them as well. It is a personal pleasure to welcome Dr. Arpad Bogsch as the first witness. He has flown in from the headquarters of the World Intellectual Property Organization in Geneva to be with us today, and I know that other witnesses will understand if we give him an extra 5 minutes, in spite of the otherwise inviolable 5-minute rule. [Laughter.] Unless there is objection, we will include all statements that are submitted in the hearing record. We will keep the record open for 3 weeks to give all witnesses time to extend their remarks and to respond to written questions. First, let me yield to the distinguished chairman of the full committee, the Senator from South Carolina, Mr. Thurmond. OPENING STATEMENT OF HON. STROM THURMOND, A U.S. The CHAIRMAN. Thank you very much, Mr. Chairman. First I want to commend you for holding this hearing. I have to open the Senate in just a few minutes, but I wanted to come by and let you know my deep interest in cooperating with you, and I want to especially welcome Dr. Bogsch, whom the Judiciary Committee honored 2 years ago with a laudatory resolution. He has flown in from the headquarters of the World Intellectual Property Organization in Geneva and has come here at considerable time and expense, and we deeply appreciate it. We want to express our appreciation to him. I think this can be a very helpful hearing, and I shall take pleasure in reading the proceedings at a later time. I will have to leave now to go and open the Senate. Mr. Chairman, again, I thank you for holding this hearing and what you are doing in this important matter. Senator MATHIAS. Mr. Chairman, I appreciate your being here. I think it is appropriate that you are here, because Mr. Quigg, in his paper, makes an interesting historical point. It was the States of South Carolina and Maryland alone among the 13 original colonies The CHAIRMAN. Two of the greatest. [Laughter.] Senator MATHIAS. Absolutely, and they have proven their greatness by providing a very high level of copyright protection in their State laws, even before the intellectual property protections contemplated by the Constitution. We are always out in front, Mr. Chairman. The CHAIRMAN. Thank you, sir. You know, after the Revolutionary War ended in 1783 with the signing of the Treaty of Paris, this country went for 4 years without a central government and the Constitution was written in 1787. During that time the colonies under the Treaty of Paris, the name 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. 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 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 |