rate remaining the same as today-$100,000 a year. It is for most Parliaments unbelievable how cheap it is. [Laughter.]

But that is the fact. It is also a very interesting thing, if you will allow me to make a very short comment, that in the Paris Convention, the United States pays the same amount of contribution as France, the Federal Republic of Germany, the United Kingdom, Japan, and the Soviet Union. And in the Berne Convention, if the United States became a member, it would pay the same amount as the Federal Republic of Germany, the United Kingdom, and France.

Senator MATHIAS. To your knowledge, are there any other nations that are thinking about joining in the near future?

Dr. BOGSCH. We try very hard to persuade China, but it will take a few years, I think.

Senator MATHIAS. You think our example might be helpful to you in persuading the Chinese?

Dr. BOGSCH. I think it will have great influence on the Chinese decision if they would find themselves in the same company with you, sir.

Senator MATHIAS. Have there been any dropouts?

Dr. BOGSCH. To my knowledge, there was one 60 or 70 years ago. I think it was the Dominican Republic.

Senator MATHIAS. But there have been no recent major nations that have left the Berne Convention?

Dr. BOGSCH. No.

Senator MATHIAS. Just one other area that I think we ought to discuss briefly, and that is to clarify the question of national treat

ment.

If the majority of the Berne member states established a principle of cooperation on, let us say, the subject that Senator Leahy raised, audio home taping, would that commit the United States in any way to provide similar protection?

Dr. BOGSCH. No, sir; because that is within the limits of the convention and the convention does not oblige any country to give an exclusive right in the case of home taping. The mere fact that other countries would go in that direction would not put any either legal or moral pressure on the United States of America to do the

same.

Senator MATHIAS. Since you are with us here, I might just go to one further question because you were very much involved in drafting the provisions of the Universal Copyright Convention some 30 years ago.

The United States strongly supported that move at the time. Why did we go to the Universal Copyright Convention and not join Berne?

Dr. BOGSCH. It is a most unfortunate historical accident. The reason is that the French, who were then the most influential in the Berne Convention, and some other Berne Convention countries too, were of the opinion that the price to be paid to let in the United States; namely, admission of certain formalities, would be too high. Then, overnight, they gave the same concession under the Universal Copyright Convention. They should have, of course, given it under the Berne Convention, but it is too late now to be sorry about it.

Senator MATHIAS. Obviously you think we should have gone forward with the Berne Convention?

Dr. BOGSCH. No. At that time, the Berne Convention countries should have made the same concessions that they made to the United States in the Universal Copyright Convention. France and the other Western European countries said at that time that the United States cannot come into the Berne Convention because you have formalities and we shall not admit formalities. And then, a few years later, under the Universal Copyright Convention, they made the concessions that the United States wished to have in the field of formalities. The existence of the Universal Copyright Convention is due to not enough foresight on behalf of the then members of the Berne Convention.

Senator MATHIAS. We hope there is wisdom enough for all acquired in the last generation.

We thank you very much for being with us.

Dr. BOGSCH. Thank you, sir.

Senator MATHIAS. Senator Leahy and I would like you to join us on the bench if you have time to stay for some of the other wit

nesses.

Senator Leahy and I would also like to submit some questions in writing, and we will ask you to submit answers in writing.

[Questions and answers, subsequently submitted for the record, follow:]

RESPONSES OF DR. BOGSCH TO WRITTEN QUESTIONS OF SENATor Mathias

Question. Are you actively recruiting any other adherents to Berne? Of particular interest to me would be your efforts in the Middle East, particularly the countries that border the Arabian Gulf.

Answer. Yes, we are. The People's Republic of China, Malaysia, and Singapore are among such countries in Asia.

In the Middle East, we are particularly active in trying to persuade the following countries to adhere to the Berne Convention: Bahrein, Jordan, Kuwait, Qatar, Saudi Arabia and the United Arab Emirates. The discussions with officials of these countries take place in the framework of visits of such officials at the headquarters of WIPO and/or visits of WIPO staff in the capitals of those countries. I, myself, visited last year Riyadh and had discussions. In most of these countries, there is no, or no adequate, copyright legislation, and our efforts consist in both counselling on the adoption of such legislation and advising adherence to the Berne Convention.

Question. Please cite the pertinent provisions of Berne that might prohibit the compulsory license for coin-operated phonorecord players and discuss any variations that might apply in other countries adhering to Berne.

Answer. The pertinent provision in the Berne Convention is Article 11(1) providing that "authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorizing... (i) the public performance of their works . . . by any means or process. (emphasis added).

This provision would seem to place performances by coin-operated phonorecord players, if the performance is a public one, among the acts which require the author's authorization.

However, in several countries party to the Berne Convention, public performance of musical works is subject to a de facto compulsory licensing system, and no serious criticism seems to have ever been levelled against such systems. This is the case, for example, in the United Kingdom, where the Performing Right Tribunal, set up by Section 23 of the UK Copyright Act, is, under certain circumstances, commissioned by law to, and in fact does, set the conditions, including the amount of copyright royalties; and the authors have no right, even if they are dissatisfied with such conditions, to prohibit the public performance of their works.

Furthermore, it is generally admitted that any country party to the Berne Convention may establish what is called "small exceptions" to the exclusive right of authorization. It is believed that a compulsory license for coin-operated phonorecord

players may, in 1985 and the forseeable future, be regarded as admissible since the economic significance, for the authors and composers, of the use of such players is marginal. For example, according to my information, the receipts of United States societies collecting royalties for performing rights, come, to the extent of some 99%, from performances other than by coin-operated phonorecord players; in other words, the economic significance of performances by coin-operated phonorecord players is one percent out of all income coming from public performances. Finally, it should be noted that coin-operated phonorecord players may well be on their way out since better techniques and less bulky devices are taking their place. Such devices are not coin-operated phonorecord players.

Question. What mechanisms might be used to grant the coin-operated phonorecord player industry equal or better protection that Congress mandated for it in 1976 that would meet the provisions of the Berne Convention?

Answer. One of the conceivable mechanisms would be to set up a body similar to the United Kingdom Performing Right Tribunal. There should be an obligation to try to reach contractual agreement that would include authorization to perform in public and, if such an agreement did not materialize because of the dominant position of the associations administering the rights of authors, the said body could fix the conditions, including the amount of fees. Under Article 17 of the Berne Convention, this would be admissible and it would grant the coin-operated phonorecord player industry equal or better protection than Congress mandated for it in 1976. However, for the reasons stated above, even the present law in the United States of America should be regarded as compatible with the Berne Convention.

Question. Is it possible for the United States to adhere to Berne and maintain Section 116 of the Copyright Act by reservation or in some other manner?

Answer. It is possible for the U.S. to adhere to the Berne Convention and maintain Section 116 of the Copyright Act. A reservation is neither possible nor neces

sary.

Senator LEAHY. Doctor, I want you to take my seat right here. Senator MATHIAS. Our next witness is Elinor Constable, Acting Assistant Secretary for Business and Economic Affairs of the State Department.

I regret that at this point we will have to adhere strictly to the 5minute rule if we are to get through with the witnesses we have for today. We will ask you to summarize your statement within 5 minutes but, as previously announced, the full statements will be included in the record.

STATEMENT OF ELINOR CONSTABLE, ACTING ASSISTANT SECRETARY OF STATE FOR THE BUREAU OF ECONOMIC AND BUSINESS AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, DC, ACCOMPANIED BY HARVEY WINTER

Ms. CONSTABLE. Thank you very much, Mr. Chairman.

I am indeed prepared to summarize my rather lengthy statement and, with your permission, submit it for the record.

My name is Elinor Constable. I am the Acting Assistant Secretary of State for Economic and Business Affairs.

Effective international copyright protection for the literary and artistic works of American nationals and the development of legal instruments to secure this protection worldwide

Senator MATHIAS. Can you speak a little more directly into the microphone. I can see that people behind you are having some trouble hearing.

Ms. CONSTABLE. Can you hear me now?

Senator MATHIAS. Yes. Ben Zelenko says he can hear you, and he is almost in the back of the room.

Ms. CONSTABLE. I am almost on top of the microphone. I hope I do not bump into it.

Effective international copyright protection of literary and artistic works of American nationals and the development of legal instruments to secure this protection worldwide have been one of the main foreign policy objectives of the Department of State for many decades. Of paramount importance to these objectives is the longheld view of the Department strongly favoring U.S. adherence to the Berne Convention for the Protection of Literary and Artistic Property.

I am not a specialist in copyright law, but I see you have a number of specialists appearing before you and, therefore, I do not propose to make any detailed analysis of what may be needed to bring U.S. law into conformity with the Berne Convention.

Although the Department strongly supports U.S. adherence to the Berne Convention, we do not, if it jeopardizes the careful balance in our present copyright laws among all groups, consumers as well as creators and producers of copyright materials.

In 1986, the Berne Convention will be 100 years old, and during the past century has been the very cornerstone of international copyright protection. This being the case, the question arises as to why the United States does not adhere to Berne at this time, notwithstanding the strong views of the Department of State favoring adherence.

The obvious answer is that not everybody has agreed with our position. A more substantive answer is until the end of World War II, the attitude of the United States toward international copyright generally was that of a copyright importing nation. Today, as the world's leading producer of copyrighted materials, there is a completely different U.S. perspective to the significance of intellectual property protection. Thus, the Department of State's Advisory International Copyright Panel at a meeting in September 1984 widely endorsed in principle U.S. adherence to the Berne Convention. As a followup to this meeting, the Authors' League, at the urging of the Department of State, put together an ad hoc group of private sector copyright experts to examine the compatibility of U.S. law with the Berne Convention under the chairmanship of the League's counsel, Irwin Karp. Draft papers are being prepared by the group on such important issues as formalities, moral rights, compulsory licensing, retroactivity, the manufacturing clause, et cetera. As soon as these papers are completed, they will be circulated to interested parties in the private and public sectors to review and comment on.

This is a pro bono effort in which Government representatives are participating in an ex officio capacity. During the course of the Department's consideration of U.S. adherence to Berne, an important question that has arisen is the possible effect of such adherence on U.S. participation in the Universal Copyright Convention. The short answer is that our membership in the UCC would not be affected by our adherence to Berne nor would our withdrawal from Unesco affect our rights and obligations under the UCC.

However, it should be noted that the United States will no longer participate in the Unesco General Conference which reviews and approves the programs and budgets of all Unesco administrative units, including the Copyright Division.

Another important question that has been raised with the Department in connection with this exercise is what benefit would the United States obtain from Berne that it does not now receive through the UCC.

We do not believe that our adherence to Berne will immediately result in a higher level of protection than is now available to our copyrighted works abroad. The real advantage is essentially long term and structural in that as a member state of the Berne Convention we will enter more completely into the mainstream of international copyright and bring U.S. copyright law and practices within a framework accepted by our closest friends and, equally important, our best customers. As a member state of the Berne Convention we will be able to participate fully in the administrative bodies of that convention and in the preparations for the next revision of Berne which may occur within the next 5 years.

In talking about the advantages of U.S. adherence to Berne, I would be remiss if I did not point to a high level of proficiency and effectiveness of the World Intellectual Property Organization as the Secretariat for the Berne Convention under the leadership of Dr. Bogsch, whom you heard from a moment ago. This contrasts with the politicized operation of Unesco as the Secretariat for the UCC.

In conclusion, the Department believes that the time has come for the United States, as the foremost producer of copyrighted material, to join Berne and become an active participant in that convention. If we fail to do so, it may be our last chance in this century. Failure to do so would also, in our view, add to the risk of deterioration and further fragmentation of the International Copyright System.

Thank you, Mr. Chairman.

Senator MATHIAS. Has the absence of the United States from the Berne Convention had any disadvantages? Has it caused us any economic disadvantage in the years that we have not adhered to it?

Ms. CONSTABLE. My impression, Mr. Chairman, is that there have not been substantial economic costs up to now because of nonadherence to the Berne Convention, primarily because we have been able to achieve protection under the UCC. I do not think that would continue to be the case, however, if we fail to participate in the Berne Convention from now on.

Senator MATHIAS. So you think the disadvantages may increase? Ms. CONSTABLE. I think they could in the future. It is difficult to quantify at this stage. However, because of the limitations that we see developing around our active participation in the UCC, I think there is the risk that there would be costs associated with nonparticipation in Berne.

Senator MATHIAS. You mentioned an ad hoc committee. What is the composition of that committee?

Is its membership limited to organizations and individuals who had some direct pecuniary interest or was there an invitation issued to public interest groups such as the American Civil Liberties Union, or well-known individuals like Dr. Harlan Cleveland?

Ms. CONSTABLE. With your permission, Mr. Chairman, I would like to ask my colleague, Harvey Winter, to respond to that ques