70/ This list is drawn from a comparison of Berne and UCC membership as of January 1, 1985, as printed in Copyright (January 1985) at 6-8 and 12. 71/ "Unclear" relations are those in which a state has attained independence since 1943, and may or may not be honoring obligations incurred under its former political status. For registration purposes the Copyright Office treats "none" and "unclear" countries the same: registration is ordinarily refused. 1. RESPONSE TO SENATOR MATHIAS' 2. QUESTION: Please cite the pertinent provisions of Berne that might prohibit the compulsory license for coinoperated phonorecord players and discuss any variations that might apply in other countries adhering to Berne. ANSWER: Article 11 of the Paris Act of Berne provides that authors of musical works enjoy the exclusive right of authorizing "the public performance of their works, including such public performance by any means or process ...." The public performance of musical works by coin operated phonorecord players is such a "means or process" and therefore falls within the exclusive right. By its own terms, Article 11 does not expressly sanction any limitation on the public Both QUESTION: Are there any provisions of the copyright law that 3. 4. ANSWER: The manufacturing clause should be permitted to expire as scheduled. Apart from that, no changes are proposed by the Copyright Office. QUESTION: What compulsory licenses granted by Congress under our copyright laws would be affected by United States adherence to the Berne Convention? How would they be affected? ANSWER: As stated in our testimony, the cable television, QUESTION: What rights, if any, will United States copyright owners lose under the Uniform Copyright Convention (UCC) as a result of our nation's withdrawal from UNESCO? ANSWER: None. The UCC is not a creature of UNESCO; the latter only serves as the Secretariat for the states part to the treaty and membership in UNESCO is not required for membership in the UCC. While it is therefore quite clear in our view that none of the rights our authors and copyright owners are entitled to the 76 countries party to the UCC are in the slightest affected by our withdrawal from UNESCO, it is equally clear that the utility of UNESCO as a vehicle for promoting the rights secured by the UCC has been largely abandoned by United States withdrawal from that organization. It is really a matter of political common sense: without a presence in the UNESCO Executive Board and General Conference, we cannot urge the adoption of copyright programs specifically of importance to our copyright interests; our failure to contribute to the budget makes it rather awkward to propose new initiatives to deal with current problems of international copyright. Having said this, it should be recalled that opinion on the utility of UNESCO as a vehicle for the modernization of copyright or the impartial study of copyright questions important to the free market Western countries was rather sharply divided even before our withdrawal from UNESCO. Is it possible for the United States to adhere to Technically, it would not be possible to join the Berne Convention with such a reservation and remain in conformity with Berne obligations. Art. 30 of the Berne Convention permits states to adhere to the Paris Act (1971) with reservations in only four areas, none of which relate to the compulsory license for performances of nondramatic musical works on juke-boxes. Theoretically, one might argue that the United States could adhere to Berne, maintain Section 116 unchanged and adopt as well express statutory provisions precluding the direct application of Article 11 of the Berne Convention to the rights authors might claim under the Convention with If respect to Section 116 activities. and this is a large if such an approach withstood a court challenge the final result would be that the United States has breached a treaty obligation and provided no legal means for redress of the violation. It seems to us unthinkable that the United States would adhere to a treaty and consciously violate its terms. - What mechanisms might be used to grant the coinoperated phonorecord player industry equal or better protection than Congress mandated for it in 1976 that would meet the provisions of the Berne Convention? The "privatization" of the rate-making function with the CRT serving as an arbitrator or mediator between the performing rights societies and the jukebox industry should serve to provide the industry with some security perhaps more than at present while comporting squarely with the practice of present Berne members. And, it is worth noting, the recent accord between the parties concerning rebates is evidence of the fact that they can reach agreement concerning important matters. - Senator MATHIAS. Our next witness will be Mr. Donald J. Quigg, Acting Commissioner for Patents and Trademarks. Before Mr. Quigg testifies, we are going to take about a 10-minute recess to attend to other urgent committee business. I will be right back. [A short recess was taken.] Senator MATHIAS. The subcommittee will come to order. Dr. Bogsch, one of the great values of our society today is shared experience. In the last 10 minutes I have just been sharing the experience of the witnesses here by rushing over to another committee and being a witness myself. Mr. Quigg. STATEMENT OF DONALD J. QUIGG, ACTING COMMISSIONER FOR PATENTS AND TRADEMARKS, PATENT AND TRADEMARK OFFICE, WASHINGTON, DC, ACCOMPANIED BY MICHAEL K. KIRK, ASSISTANT COMMISSIONER FOR EXTERNAL AFFAIRS, AND MICHAEL S. KEPLINGER, ATTORNEY, OFFICE OF LEGISLATION AND INTERNATIONAL AFFAIRS Mr. QUIGG. Thank you, Mr. Chairman. I would like to introduce my associates. On my right is Mike Kirk, Assistant Commissioner for External Affairs. On my left is Mike Keplinger, legal counsel for Legislative Affairs. Senator MATHIAS. We are happy to have them with us this morning. Mr. QUIGG. It is a pleasure to appear before you today to discuss the advantages to the United States of adherence to the Berne Convention for the protection of literary and artistic works. The United States has had a checkered history in international copyright. In 1884 Senator Chace, in his report on the International Copyright Act of 1891, characterized the United States as the Barbary Coast of literature, but we have come a long way since then. Today we are among the leaders in promoting effective copyright protection throughout the world, and we are the world's leading exporter of books, motion pictures, broadcast programming, and computer software, all works that are subject to illicit copying. Presently our international copyright relations are governed by the Universal Copyright Convention. The UCC is administered by Unesco, and it links together 78 countries. We do not belong to the older Berne Convention that governs copyright relations among its 76 members. Together the two conventions cover over 100 countries, and of the major nations only the United States and Soviet Union and China do not belong to the Berne Convention. In 1976, the comprehensive revision of the U.S. copyright law brought our law very nearly into compliance with the Berne Convention. Only a few adjustments appear to be needed to permit adherence. The scope of any needed changes is presently under study by an ad hoc group of experts convened under the auspices of the authors' league. It is too early to identify precisely those changes that may be needed, but the most likely are, of course, the formalities of notice and registration and certain features related to compulsory licensing. The question of moral rights also deserves careful examination. At present there is generally good support for |