cy clause nor indeed a written constitution, and where typically the Parliament must enact legislation to create private rightsthat has one implication. But for us, with article VI, I think it has a totally different one, and I think the citation to Mannington Mills in the ad hoc group's report is not sufficient. I was read some language on the telephone on Saturday, to the effect that the Congress-not the Senate through its accession process, giving its advice and consent-in the Copyright Act would find and declare that "the Berne Convention is not self-executing and that the obligations of the United States thereunder may only be performed pursuant to appropriate legislation." I would say that that provision, if it just came out clean at the same time as we acceded to Berne, would create difficulties. Certainly, it would for an international tribunal or a court in another country. I think it would, on the face of it, seem to put us to some extent in breach of the very treaty we have just acceded to. When we accede, if we do, to Berne, we can say that our accession will be effective 1 year from now, 5 years from now, 6 years from now; we can leave a lot of time. But if we do not do that and if we just accede, ipso facto, I think proposed provision would be-I would hate to say mischievous, but that is what it is, I think. I think it would be mischievous and create problems for American courts. I could explain that if you care to pursue the matter. [Professor Wallace's submissions for the reord follow:] PREPARED STATEMENT OF DON WALLACE, Jr. Mr. Chairman, I am Don Wallace, Jr., Director, International Law Institute, and Professor of Law, Georgetown University Law Center; and Of Counsel to Wald, Harkrader & Ross. I am very glad to appear before you, once again. 1. I have been asked whether the Berne Convention for the Protection of Literary and Artistic Works, dated September 9, 1886 as amended through July 24, 1971, is "self-executing." To put the question slightly differently, were the United States to accede to the Berne Convention, will we have acceded to a treaty that is self-executing as to and in the United States? Indeed, a related question presents itself: can we avoid such a self-executing effect, upon our accession? A final, important distinction is this: would Berne be deemed to be self-executing by an American court; as opposed, for example, to the International Court of Justice (which would have jurisdiction under Article 33(1) of the Convention, unless we were to declare otherwise pursuant to Article 33(2) of the Convention). 2. The answer to the question whether the Convention would be self-executing as to us, if we acceded to it (without taking any other steps), would seem to be yes in part, and no in part. Thus all or parts of Articles 2, 4, 5, 6-bis, 7, 8, 9, 10, 11-bis, 12, 13, 14, 15 and 18, and probably other Articles of the Convention, would seem, by a combination of the operation of their terms and the operation of Article VI of the U.S. Constitution, the so-called Supremacy Clause, to be self-executing and to create rights and duties in private parties, and governments, in U.S. courts. The fact that in other countries, such as the United Kingdom, these might not be self-executing because of the nature of the constitutional/legal system in those countries, seems irrelevant to the result in the United States. To take a possible example of self-executing provisions, Article 2(1) of the Convention lists "literary and artistic works," including some that might not be included in our Copyright Act, and Article 2(6) states that the works mentioned (in 2(1)) “shall enjoy protection," etc. On the other hand, other provisions of Berne do not directly create private rights and duties. Thus, Article 2(7) provides that "it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models," etc. As one looks through the Berne Convention, and recognizes that parts of it have been adopted in 1886, 1896, 1908, 1914, 1928, 1948, 1967 and 1971, one encounters an odd mixture of provisions: direct creation of rights, creation of rights by reference to national laws; anticipation of further national law; and more conventional treaty provisions. Given the great variety of provisions in the Convention, Articles 36 (1) and (2) are almost anticlimatic. They provide: "(1) Any country party to this Convention, undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention. "(2) It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its domestic law to give effect to the provisions of this Convention." Because of Article VI of our Constitution, Article 36(1) is to a degree redundant for us. Because of Article VI, to the extent the Convention is "self-executing," it would become law for us by its own force and also supersede prior, inconsistent legislation, e.g., provisions of the Copyright Act. See Proposed Restatement of the Law, Foreign Relations Law of the United States (Rev.), American Law Institute, Section 135(2); Head Money Cases, 112 U.S. 580 (1884). 3. To the extent the Convention is not otherwise self-executing, Article 36 imposes an obligation upon us to have laws in place to "execute it" or to be in a position to do so. Presumably there is nothing in our constitutional system to prevent us from executing the Convention. Thus, for example, there would not seem to be any difficulty in having the terms of the Convention apply to and in our states. The normal implication is that we would "execute" the non-self-executing part of a treaty within a reasonable time of our becoming bound to it. Indeed, we could clearly enact any necessary legislation, concurrently with, or indeed prior to, the Senate's giving its consent, which might execute (I ignore the possibility of Senate action alone executing the non-self-executing parts of the Convention) the Convention at the same time as the Convention enters into force with respect to the United States, by proclamation or otherwise, as an international matter. Article 29(2)(a) of the Convention suggests that, on accession, the treaty will enter into force with respect to us on a date indicated in our instrument of accession, which, it appears, could be any time that we choose. Article 36(1) refers to the "constitution" of countries party to the Convention. I suppose that in the area of copyright, one must always consider limitations imposed by the First Amendment of the Constitution, not only on the treaty power, but indeed on the legislative power. I assume that such articles as Article 2(4) and 2(8) of the Convention referring to legislative texts, news of the day, etc., would not apply in such a way as to violate the First Amendment. For a treaty cannot be selfexecuting, and indeed even executed in the U.S. if the U.S. Constitution prevents it. Restatement, Foreign Relations Law, Section 131, Comment (i). 4. I understand that whether or not Berne would be self-executing might be raised in litigation in United States courts. It is true that to the extent that Berne is selfexecuting and irreconcilably inconsistent with prior U.S. legislation, it will supersede that legislation and be the source of private rights and duties in our courts. (To the extent that it is not self-executing, or otherwise implemented by U.S. legislation, it is that legislation that would be the source of private rights and obligations in our courts.) Generally, the question of whether a treaty, including Berne, is self-executing is for our courts a question of the intention of the parties-in this case, as revealed in the Convention and by the United States at the time of accession. And in this connection, our courts would look not only at statements of our executive, but also acts and statements of Congress, specifically the Senate, during the advise and consent process. They would give great weight to interpretations of Berne by the executive. (Incidentally, the practice of our courts might not be identical to that of an international court, such as the International Court of Justice, applying the customary international law with respect to interpretation of treaties, currently codified in the Vienna Convention on the Law of Treaties that is in force but to which we are not a party, but many of whose terms we have suggested constitute customary international law. Specifically, Vienna looks more to the four corners of instruments, and less to surrounding circumstances, than U.S. courts.) 5. Articles 28-30 of the Convention would appear to allow us very limited reservations on our accession (namely, under 30(2)(6) and 33(2)). 6. Although our right to make reservations appear to be very limited, we might still declare certain "understandings." This would enable us to seek to interpret certain provisions, for our courts, in certain ways. It is not clear to me that it would extend to the right to state it to be our understanding, on the occasion of accession, that none of Berne is self-executing. I have just been informed that it has been suggested that an amendment has been proposed to the Copyright Act (as opposed to the Senate's resolution of accession), that "The Congress finds and declares that the Berne Convention for the Protection of Literary and Artistic Works is not self-executing, and the obligations of the United States thereunder may only be performed pursuant to appropriate legislation." On a quick reading, it strikes me that this language creates problems. To the extent that Berne is not self-executing it may be innocuous-although it seems a bit inconsistent in tone with parts of Article 36.1 To the extent that "appropriate legislation" already exists with respect to otherwise non-self-executing parts of Berne, it raises questions. To the extent Berne is self-executing, and we accede to it, and bearing in mind Article 36 generally, the proposed Copyright amendment may be deemed to raise questions of our good faith in international law. The Vienna Convention reflects the notion of the obligation to carry out an international agreement in good faith, rather akin to the principle of pacta sunt servanda, which one can assume is also the law of the United States. This suggests to me that to the extent that the Berne Convention is "self-executing," our accession to it implies our obligation to apply it without further legislative action. We also accept Article 36. It is hard to see how accession and the proposed amendment would co-exist, without a risk of problems for our courts, because of international law, Article VI of the Constitution, etc. I will be very happy to consider further questions with respect to the self-executing nature of the Berne Convention, inasmuch as I was asked to give this testimony on very short notice. 1 The Third Circuit Court of Appeals in interpreting the 1883 Paris Convention for the Protection of Industrial Property in Mannington Mills, Inc. v. Congoleum Corporation, 595 F.d 1287 (1979), declared it to be non-self-executing because of its Article 17, which is almost identical to Berne's Article 36. I am not familiar with the other provisions of the Paris Convention. In any event, the holding was made without benefit of language akin to that in the proposed amendment to the Copyright Act. I have your letter of May 21. Let me address each set of questions separately. 1. You point out that the United States could enter reservations to the Berne Convention, or attach an understanding as to how particular provisions should be interpreted. But you express doubt about whether an understanding could be used to express our intentions with respect to self-execution. Why not? What other methods are available to demonstrate how we think the self-execution questions ought to be resolved? In my April 15, 1986 prepared statement, I stated, on page 6, "It is not clear to me that [our right to declare 'understandings']...would extend to the right to state it to be our understanding, on the occasion of accession, that none of Berne is self-executing." My revised prepared and oral statements confirm that our right under Berne to enter reservations is very limited. What "understandings" would be permissible? are from different cases: These (i). Certain articles of the Convention are fairly clearly not self-executing and we could presumably say as much if it served some purpose to do so. I will return to a discussion of these articles, as well as those referred to in (ii) and (iii). (ii). The case will not be so clear for some other articles. If it is in our interest to do so, we might specify in our instrument of accession our understanding as to why these are not self-executing. Our understanding may be based on WIPO interpretations, practice of other countries (i.e., who accept the self-executing nature of some provisions of Berne), etc. All this would take some work. (iii). Many articles do appear to be self-executing (I have listed some in my testimony) and in some of these cases our current legislation may not be "compatible.' "1 See the December 1985 preliminary report of the ad hoc working group on U.S. Adherence to the Berne Convention. To the extent Berne is self-executing, it will override such prior legislation. It is difficult to see how understandings will solve this problem. Where Berne is self-executing, it is because of the combination of (a) its terms--see, e.g., Eugen Ulmer, The Federal Republic of Germany and the Berne Union, in Copyright, pages 83-86 (March 1986), and (b) the operation of Article VI of the Constitution. (iv). Other self-executing articles will be matched by current U.S. legislation already putting us in conformity with Berne. Again, see report of ad hoc working group. Understandings with respect to these articles may also be desirable for some reason. A word or two about the relation of our domestic system to international law may be in order as to why I think (iii) presents problems. In our domestic system, I believe it is agreed that our courts would have the final say about the effect of Berne--over the Senate, the Congress, and the President, who has the duty under Article II, Section 3, to "take Care that the Laws (presumably including treaties) be faithfully executed To be sure, understandings will have a very persuasive effect on our courts. But in the first instance, the question as to whether or not, and what parts of, Berne are self-executing is a question of international law, to which our courts will look where appropriate. International law will have regard to the language of Berne developed since 1886, the intentions of the parties and the negotiating history since 1886, the context in which the treaty was made, and in which we acceded to it, etc. Here "our intentions" and what "we think," to refer to your questions above, may not be exclusively controlling. So, too, relevant opinions of international tribunals, including the International Court of Justice, and of foreign courts may be cited. Incidentally, Article 33(1) of Berne provides for disputes concerning interpretation to be taken to the International Court of Justice, subject to our reservation to the contrary under Article 33(2). I will refer to international law again, below. You ask about "other methods" to deal with the problem. One very different approach would be to accede, with delayed effective date, pursuant to Article 29(2) (a) of Berne. This would not solve our problem, but it might serve some purpose, and give us some time--I do not know how it would play out. * * * 2. The Copyright Office has suggested statutory language that would buttress the conclusion that the Berne Convention is not self-executing. Do you think their draft will do the job? I take it the language to which you refer is the following at page 10 of the Copyright Office's draft of implementing legislation: The Congress finds and declares that the Berne Let me address your questions in two ways. (i). To the extent that the Berne Convention is selfexecuting (see above), the suggested statutory language cannot "buttress" the conclusion that it is not. |