of the Ad Hoc Committee's Report and referred to in my comments on those Chapters below. Chapters VII and IX Notice, Registration, Recordation & Deposit I agree with the Ad Hoc Committee's conclusions about the incompatibility with Berne of U.S. notice and other formalities. It may not be amiss to add that an effort to meet the standards needed for adherence to Berne could provide a welcome opportunity to rid U.S. law of various burdensome formalities retained, and even augmented in some respects, in the U.S. Copyright Revision Act of 1976. As a first priority dictated by Berne, non-compliance with U.S. formalities in connection with a copyright should not affect the validity or enforceability of the copyright concerned. The present sanction of forfeiture, in particular, is barbaric in its impact (1.e., it may wipe out the entire value of years of creative effort) whether applied to U.S. or foreign works; it is disproportionate to any ends served and should be done away with. Non-voluntary registration and deposit for unpublished works as a condition of suit should be discontinued. Required public deposit of "private" unpublished works seems entirely inappropriate under Berne Article 10, as well as under UCC Article III, § 4, and also as a matter of public policy. A reduction of formalities discussed above should permit the reduction of Copyright Office staff and workload and thus allow major cost-cutting. This could avert mischievous proposals to raise copyright fees and thus foist on U.S. and/or other authors the expense of an out-of-step system. Chapter XIII Subject Matter I agree with the Ad Hoc Committee's Report that study of what is actually done in the Berne countries to protect architecture and applied art might clarify our own possible obligations in case we sought to adhere. It is possible that the U.S. could protect architecture without internal convulsions and that special provisions for limited protection for applied art could be used to rid our own Copyright Act of categories of works which do not seem to merit life plus 50 years of protection e.g., reproductions of works of art. See also some of the works listed in Douglas, J's dissent in Mazer v. Stein, 347 U.S. 201, at 221 (1954). - Footnote 3 on page 7 of the Report's Chapter XIV raises, in my view, a larger question of compatibility than its footnote status might suggest. I mentioned earlier my view that the broad application of work-for-hire status that flows from present U.S. statutory provisions on this subject, and from recent interpretations of those provisions, is in a significant degree at odds with the concept of droit moral in Article 6bis of Berne and even with the notion of economic rights of actual authors. It may be that the See comment (2) on Chapter VI, supra. Report's finding of compatibility with Berne here is a possible conclusion, and consistent with the law of some Berne countries. The latest WIPO legislative proposals on this subject could support this. But it seems to me that taking authorship of a work too readily from its creator-in-fact will often run counter to the personal link between the individual creator and the created work which underlies the droit moral notions of disclosure, credit and integrity, to say nothing of countering the U.S.'s own historic objectives and policies of promoting science and the useful arts through rewards to actual creators, as articulated in the Constitution. Please note that I am not saying work-for-hire status is not proper in a number of situations. here. There are hard questions of appropriateness and degree While the immediate question before us is compatibility with Berne, I think the answer on works for hire should perhaps not be an unqualified "yes." Rather it should be "maybe" or "yes, but." If we proceed toward adherence, provision should be made for a major study aimed at finding compromises on this subject that mediate fairly, in varying commercial contexts, between the reasonable needs and demands of employers and those of creative authors whose moral and economic rights under Berne (and other laws) to authorship status, to credit, to integrity, and to due compensation are at stake. The U.S. work-for-hire rules arguably push our authors too far toward patronage, subsidy and part- or full-time employment by others, and too far from the notion of the free individual author in a free society enabled by authors' rights laws moral (Article 6bis) and economic to control, and to live by, his art. May 15, 1986 MEMORANDUM TO: SUBJECT: FROM: Senate Judiciary Subcommittee on Patents, Copyrights & Comments on Discussion Bill and Commentary Prepared for the John M. Kernochan, Nash Professor of Law, Columbia University The purpose of this memorandum is to comment on the Copyright Office's thoughtful and workmanlike preliminary draft of legislative provisions (distributed shortly before the April 15 Senate Subcommittee hearings) designed to revise U.S. Copyright Law so as to make possible U.S. adherence to the Berne Convention. The comments that follow differ in content and approach, and sometimes in conclusions, from those I submitted to the Ad Hoc Working Group on Adherence to Berne on March 31, 1986 and (in slightly revised form) to the Senate Subcommittee on April 11, 1986 before its April 15 hearings. The differences are due to the fact that we are now considering not what revisions of U.S. law would be ideally desirable and appropriate to conform our law to the highest aims of Berne. Rather, we must consider now (1) what legislative revisions are absolutely essential to attain a compatibility with Berne acceptable to the other signatories and to WIPO and (2) legislative action via a bill or bills shaped as far as may be to pass through difficult Congressional processes with maximum ease and with the least danger to rights that authors now possess under existing U.S. law. Adopting such legislation is not a substitute for later attention to the thorough overhaul of our copyright law essential to cope with the new technological era and to strengthen authors' rights for the years ahead. In the context of the enactment problems immediately before us, I note that the Copyright Office has proposed minimal amendments to U.S. law - i.e., only where change is clearly required for Berne compatibility. This is surely wise if the revision bill is to be kept as focused and concentrated as I believe it must be to minimize risks of non-germane, perhaps harmful, amendments. Elsewhere I have indicated my strong support for U.S. adherence to Berne and the reasons therefor. See my testimony of April 15 before the Subcommittee as well as my prepared statement for that occasion for the Ad Hoc Working Group, cited above. I reemphasize here my view that achieving Berne adherence overrides in importance some of the detailed critical comments contained in my earlier submissions.. Finally, I would state by way of preface that a two-tier system for achieving Berne compatibility i.e., high protections for Berne - works and lower ones for U.S. national works - seems to me generally undesirable, except in a few instances, as the result is to discriminate unjustly in favor of foreign authors and against domestic U.S. authors. I believe this view is generally shared by the Copyright Office and the Ad Hoc Working Group though we may differ on some specifics in this matter. Following are my comments: A. DEFINITIONS PROPOSED TO BE ADDED TO § 101 1. "Work of United States Origin" The proposed draft definition of a "work of United States origin" seems unnecessarily confusing as drawn. Would the following be a satisfactory substitute for items (1), (2), and (3) of the draft? (1) a work first published in the United States or first published within a 30-day period in the International Copyright Convention and (b) grants a longer period of protection to the applicable work. For Apart from the issue of clarity, many questions seem to be suggested by the face of the draft, some or all of which may not have satisfactory answers under the Berne text, in itself confusing. example, would not paragraph (2) of the Copyright Office's definition sweep under the U.S. regime of formalities see topic E infra works by many a non-U.S. Berne author who first publishes simultaneously in his/her country and in the United States? Is this a desirable result? Despite Berne Article 5(4), is this consistent with the thrust of Berne? Are Berne Articles 3(1) and 5(1) adequately taken account of here? Does and should paragraph (4) of the Copyright Office draft eliminate from a "work of United States origin", and thus from formalities, a work by a U.S. national simultaneously published in the U.S. and another Berne country? In the absence of a clearer explanation than I have been able to find in the Copyright Office's commentary, it is difficult to understand why the final paragraph of the proposed definition (referring to works by multiple authors of varied nationalities) provides that the country of origin should be the United States only if the quantum of foreign authorship is no more than 10 per cent. Would it not seem that where one or more U.S. nationals contribute "more than half" or a "preponderance" of the content of a work it could reasonably be deemed a work of U.S. origin? Furthermore, legislating here in terms of standards, such as "preponderantly" or "more than half," rather than via specific percentages, may facilitate application of the There is ample precedent for such an approach. See, e.g., existing § 601(a) and in later subsections of § 601 the references to a "substantial part." Some exercise of judgment, as well as factual investigation, seems unavoidable in this area. law. 2. "Architectural Works" Should not this definition expressly include "architectural structures," not presently protected in the Copyright Act, as well as relevant drawings, plans, sketches, models, designs and sculptures? 3. "Pictorial. Graphic and Sculptural Works" As to the proposed definition, and the adequacy of the U.S. law's coverage of applied art and industrial design, I believe our present 1 The broad sweep of paragraph (2) of the Copyright Office draft is substantially reduced by omitting the words "or the same" [period of protection] in the suggested substitute draft. This would appear to be consistent with Article 5(4) of the Berne Convention and Comment 5.13(a) of the WIPO Guide thereto. See, also, the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, Foreword at 7 (1985). |