authorship of the work and to object or other modification of, or other reputation." The Ad Hoc Report concludes that U.S. protection of moral rights is compatible with Berne: "Given the substantial protection now The Copyright Office commentary notes (p. 16) that this view appeared acceptable to foreign copyright experts participating in a 1978 WIPO meeting which examined the 1978 Copyright Act vis-a-vis Berne. The Copyright Office "draft discussion bill" provides (p.15) for a clause "freezing" the status quo of moral rights. On preliminary examination, the Authors League believes the clause has serious shortcomings: it might be construed to foreclose judicial decisions under current Copyright Act or other statutory provisions, or common law principles without regard to Berne that give more effective protection to the author's rights of paternity or integrity of the work than were recognized in prior decisions. This is not acceptable, and may not have been intended. Even if no specific moral rights changes are enacted as part of the Berne implementing legislation, there really is no need for a "freezing clause", and certainly not the one proposed in the "Discussion Bill". The protection of authors' moral rights has been expanding under U.S. law federal and state, statutory and common and that development - should not be blocked, clouded or preempted by such an amendment to the The Copyright Office Commentary (pp. 20-22) concludes that no changes should be made in the Registration and Recordation provisions of the Copyright Act. The Ad Hoc Report concludes that the requirements of registration (Sec. 411) and recordation (Sec. 205(d)) as conditions for infringement suits are incompatible with Berne as applied to works of foreign origin. (9-1,2). I believe the commentary which will be submitted to the Subcommittee. I also might note that the Authors League believes that serious consideration must be given to revising the Registration and Recordation provisions for reasons unrelated to Berne Adherence, and will speak to that problem at an appropriate time. As mentioned, there has not been sufficient time to review and evaluate the Copyright Office's Discussion Bill and Commentary, and I request permission to submit a supplemental statement both on the provisions I have mentioned briefly, and others which are of great importance to author and dramatists members of the Authors League. SUMMARY OF CONCLUSIONS OF AD HOC Compatible Provisions The following provisions of the United States Copyright Act are compatible with the Berne Convention, with respect to works of foreign and U.S. origin. The cable compulsory license provision (17 U.S.C. Sec. 111) is compatible with Berne. Article Ibis (2) allows the right of retransmission of a broadcast to be exercised by compulsory licensing under conditions which are met in Sec. 111. Chapter 2 EXEMPTIONS TO PUBLIC PERFORMANCE AND DISPLAY RIGHTS Sec. 110 exemptions to the right of public display are compatible with Berne, since the Convention does not stipulate that right. Sec. 110 exemptions to the public performance rights are substantially compatible with Berne under Article 10(2), or the "minor reservations" understanding. Chapter 5 THE MECHANICAL LICENSE The mechanical license for making and distributing phonograph records, Sec. 111, is compatible with Berne, under its Article 13(1). The protection for moral rights under U.S law is compatible with Berne's Article 6bis, considering: the remedies now available here, the lack of uniformity of protection in other Berne countries, absence of moral rights provisions from some national laws, and reservation of control over remedies to each member country. Chapter 8 PUBLIC BROADCASTING COMPULSORY LICENSE The Sec. 118 public broadcasting compulsory license for performances is compatible with Berne under its Article 1lbis (2) which allows compulsory licensing under conditions that are met in Sec. 118. It is unclear whether the Sec. 118 compulsory license for reproduction of musical and graphic works for the broadcast programs involved is compatible with Berne. It might be argued that it is compatible with the spirit and letter of the "special cases" exception of Article 9(2). Chapter 9 DEPOSITS The deposit provisions of Sections 407 and 408 are compatible with Berne since they are not conditions of copyright protection. Chapter 9 Registration Sec. 408 is compatible with Berne since its permissive registration requirements are not a condition of copyright, and therefore do not conflict with Article 5(2). Sec. 412 is compatible with Berne since it makes registration a condition for obtaining certain remedies, not a condition for all protection of the work. below. N.B. See Chapter 9 commentary under "Incompatible Provisions", Berne is a self-executing treaty under U.S. constitutional law and therefore implementing legislation by Congress is required to give effect to the provisions of the convention. This is compatible with Article 36. The provisions of Secs. 101 and 102 concerning protected subject matter are compatible with Berne's Articles 1, 2 and 7(4), with the exceptions of buildings and other works of architecture: and the possible exceptions of mask works for semiconductor chips and works of applied art whose artistic features and utilitarian aspects of a useful article are not separate and independent. Chapter 14 WORKS MADE FOR HIRE The work-made-for hire provisions of Secs. 101 and 201(b) are compatible with Berne, which does not define an "author" or stipulate that the person who actually created a work must be deemed its author, but rather leaves the matter to national legislation. The U.S term of copyright for works made for hire does not always fit neatly within the Berne standards; but the Convention seems intended to give member countries considerable discretion in dealing with such works. Incompatible Provisions The following sections of the U.S. Copyright Act are incompatible with Berne as applied to works of foreign origin. Because of Article 5(1) & (3) of Berne, the sections are not incompatible as applied to works of U.S. origin. The jukebox license granted by Section 116 is not compatible with Berne as to works of foreign origin because of the exclusive performance right in musical works granted in Article 11(1) Chapter 4 THE MANUFACTURING CLAUSE The manufacturing clause provisions of Secs. 601-603 are not compatible with Berne because of Article 5(2) which provides that the enjoyment and exercise of rights in a work "shall not be subject to any formality." Sec. 401, requiring a notice of copyright in published works is incompatible with Berne since it conditions the preservation of copyright on the formality of notice, in contradiction of Article 5(2). Sec. 405(a), requiring registration to cure omission of notice, is incompatible with Berne under Article 5(2) which prohibits enjoyment of rights from being subject to any formality. It is unclear whether Sec. 405(b), which governs relief against innocent infringers, is compatible with Berne. (ibid.) Sec. 411 is incompatible with Berne since it requires registration as a condition to instituting an action for infringement. N.B. See Chapter 4 commentary under "Compatible provisions", above. Chapter 10 RENEWAL AND DURATION Sec. 304(a)'s renewal registration provisions are incompatible with Berne because: (i) the requirement of a renewal is a formality prohibited by Article 5(2) and (ii) because the term of renewal copyright is shorter than the life plus fifty year term required by Article 7(1). Sec. 303(c)'s provisions for duration of copyrights in anonymous or psuedonymous works are incompatible with Berne as to such of those works that are published more than 50 years after creation, because Article 7(3) provides for a term of protection continuing for fifty years after the work is made publicly available. 1. 6.12.86 ANSWERS BY IRWIN KARP TO QUESTIONS ASKED BY "How is our law compatible with Berne, e.g. in the areas of term of protection, exclusive rights Term of Protection The term of protection granted by Sec. 302 (a) & (b) ["life-plus-50 years"] is compatible with Article 7(1) of Berne. (Berne references are to the Paris Act of 1971). The term of protection for anonymous and pseudonymous works granted by Sec. 302 is not compatible with Berne for the reasons stated in Chapter 10 of the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention ("Ad Hoc Report"). The term of protection granted by Sec. 302(c) for works made for hire may be compatible with Berne; see Chapter XIV, Ad Hoc Report. Exclusive Rights The exclusive rights granted by Sec. 106 are compatible with those granted by Articles 8 and 11-14bis of Berne. Fair Use Section 107 is compatible with Articles 10, and 10bis of Berne. See Chapter 2 of Ad Hoc Report. la. "Would our copyright principles be in general accord Yes. 2. (Summary of Question) Should Congress (i) adopt provisions of the (U.S.) copyright law for everyone?" Congress should maintain a uniform. system. Incompatible provisions of U.S. law should be amended to make them compatible with Berne for all works by U.S. as well as Berne nationals, regardless of the place of first publication. Candidly, the only reason for a two-tier approach on a given provision is to avoid a political conflict that might torpedo the legislation to implement U.S. adherence to Berne. The only issue where that expediency might be required is the jukebox license; the proprietors have political clout. There is no reason to compromise on such fundamental subjects as formalities because the only opponen of a "uniform system" is the Copyright Office. It does not, and should not, have political power to oppose a uniform-system approach and its rationale for opposition is without merit. 3. (Summary of question) Should formalities be maintained? Article 5(2) of Berne provides that the enjoyment and exercise of rights guaranteed to authors by Berne "shall not be subject to any formality" such as notice of copyright or registration. While Article 5 allows the U.S. to apply a two-tier system to formalities, the Authors League believes that this is unwarranted and unfair, and incompatible with the spirit of Berne -- and also a poor example for those pirate-host nations we are trying to cajole into adopting civilized copyright laws. Notice is a trap for authors and publishers. Often, through mistake or unfamiliarity with the Act, copyright has been lost by failure to include a notice or a correct notice, and that can happen under the present law (Sec. 401) despite Sec. 405. We have no objection to |