Mr. KARP. The fact is that the proponents of the manufacturing clause take no account of the factor of retaliation, and to their great detriment, too.

Senator MATHIAS. But Members of the Senate here who represent other interests will, of course, be either aware of it or, I assume, be made aware of it.

Mr. KARP. Well, I hope some of the sponsors of the manufacturing clause bill realize that.

Senator MATHIAS. Professor Wallace, I understand that your position is that the American courts will probably give great weight to the intentions of the parties when determining whether or not a treaty is self-executing.

How should the Senate best express its intentions in this regard? We have to take into account, because of the manufacturing clause, that we have other things waiting in the wings. That is what complicates this whole picture, that we have to look at in a comprehensive way.

We have got to give some weight to the views of the House of Representatives, and they would express their views not on the treaty itself because they do not have that constitutional role, but the implementing legislation certainly gives them an opportunity for expression.

Professor WALLACE. I always recommend prayer as the first solution to all problems and analysis as the second.

Speaking generally with respect to the question of intention, of course, the Senate can say anything that it wishes to say, and the Executive will be influenced by that and the courts will be aware of the record. But I think the problem is a little more difficult, especially as the convention is interpreted to give us very limited rights of reservation on accession.

Something that Mr. Karp said seemed to suggest that the wish might be the father of the thought. Because of these practical problems that you have been discussing in the last few minutes, I gather that it would be advantageous for some quarters if the treaty were not self-executing, but to say that is not to make it not self-executing.

Referring to Mannington Mills, courts can be and have been wrong-often, in fact, unfortunately. Now, I do not know the facts of that case that well. I do not know the Paris Convention. I do know that article 17 of the Paris Convention is very similar to, and indeed inspired article 36 of the Berne Convention at Stockholm in the amendment in 1967.

But that is not all there is to the Berne Convention, and indeed as I pointed out in my written testimony, the Berne Convention was drafted over 100 years on 8 or 10 occasions-by human beings, who make mistakes, and are not always consistent, most are not. It is quite clear to me that they did not think out the relationship of all these provisions to each other, especially for the benefit of a U.S. judge.

To get to your specific question, Mr. Senator, I think that what probably you have to do is work through the Berne Convention provision by provision, relating it to domestic U.S. problems-jukeboxes, et cetera, provision by provision.

Where it is decided that the Senate is not to be trusted to bring these changes through accession, assuming that the treaty is selfexecuting, you would presumably make provision for deliberation in both Houses, and given the apparently limited right to reserve, you might state that our understanding of article 36 is that we have got time to work these things out, or you recommend to the executive branch-and indeed you can put it in your resolution, I suppose, of accession-that our accession will only be effective in 1 year, 2 years, or 3 years. I think you just work it out section by section.

To the extent that the proprietors of the Berne Convention are happy to have the United States accede to it, as I would hope they would be, I think they would understand how our system works.

But I do not think I would substitute for the process-and this is the process in many treaties, et cetera, as we know-an analytically incorrect characterization of the operation of the Berne Convention and its self-executing nature.

Mr. KARP. I am glad that Mr. Wallace presents the point of view, because I do not ignore it and I think it is something the Senate has to grapple with. But I think we have time, since you are not going to pass this for a couple of months anyway, to consult Professor Henkin and other international law experts. Let us get a pretty good sampling of views.

Having had a little experience in court and knowing that courts make mistakes, I also know that when the decision is flat on, as Mannington Mills is, the only way it is going to get changed is if the Supreme Court changes it with a decision involving another circuit and another case.

The Mannington Mills case involves exactly the same issue because the Paris Convention has several self-executing clauses in it, and the point of the decision was that despite the apparent self-executing nature of given clauses, the treaty could not be considered self-executing because of article 17, which is the same as article 36 of the Berne Convention.

Professor WALLACE. Well, Mr. Senator, not only can courts be wrong, but professors can be wrong, and I think what I would suggest is that the Senate should behave cautiously and responsibly. Senator MATHIAS. They get reversed less often. [Laughter.]

Professor WALLACE. But there are professors watching them all the time, sir. [Laughter.]

Actually, my statement is based largely on the proposed revision of the restatement of foreign relations law, the chief reporter of which is Professor Henkin.

I do not think I have said anything about Berne which is particularly personal to me. I think that an academic should call his shots as he sees them, and my observations were based on a fairly careful study of the draft restatement with which I am rather familiar. Mr. KARP. Actually, Professor Henkin said that he even doubts that there should be a self-executing doctrine in our Constitution. Professor WALLACE. Of course, that is a totally different matter. Mr. KARP. Well, that would solve our problem if he were right. [Laughter.]

Professor WALLACE. Not in our lifetime.

Senator MATHIAS. Professor Kernochan, do you want to get a word in on this one?

Professor KERNOCHAN. Yes, sir. Professor Henkin is a few doors down the hall from me at Columbia University, and I did take the precaution of running this chapter of the ad hoc committee's report past him.

I do strongly concur in Mr. Karp's recommendation that you should get an opinion from him, but on the first reading he thought the committee was right in saying it could be made nonself-executing.

Senator MATHIAS. Before we move on to the next panel, let me ask you one more question. One of the proposals for providing compatibility has been that we simply make these provisions inapplicable to the works by nationals of the Berne countries or to works first published in countries in Berne territory, so that no change would be needed with respect to works by U.S. authors that are first published here.

We could have that kind of a two-tier system, or we could simply make the changes here which would be universally applicable.

Should we make the minimal changes and create the two-tier system or should we make the more serious, substantial changes which will be probably politically more difficult to achieve, but which would maintain uniformity of treatment?

Mr. KARP. As we say in the statement, Senator, this is a very difficult political judgment-political in the sense of how organizations representing copyright owners should deal with this.

But I stress, and I have no compunction about repeating, we have to be candid. A two-tier system is a way to resolve a lot of the political controversy over given provisions. I think that what will happen is that we will probably accept some two-tier treatment and urge the Senate not to apply it in other cases.

We might very well not have our way and end up with more twotier provisions than we would prefer. But I think we must not lose sight of the fact that the purpose of this exercise is to join Berne and improve our copyright protection abroad.

That does not close the door, as Professor Kernochan pointed out, to continuing efforts by American authors and publishers and producers to improve specific provisions of the Copyright Act that are not now satisfactory, just as Mr. Boucher is trying to unimprove another provision of the law, and that will keep going on, too. By the way, his effort might make it more difficult to achieve compatibility with Berne.

Senator MATHIAS. On that note, we will end this panel. Thank you for your attendance here. I wish we could continue this dialog, but we will have to move on to the next panel.

The second panel includes Ms. Carol Risher, Mr. Norman Alterman, Mr. Leonard Feist, Mr. Victor Henriques, and Mr. Morton Goldberg.

While they are assembling, we are going to take about a 2minute recess. I will be right back.

[A brief recess was taken.]

Senator SPECTER [presiding]. We will reassemble. Senator Mathias will be absent for only a moment or two and has asked me to proceed with panel two.

At this time, we will proceed with Ms. Carol Risher, Director of Copyrights; Mr. Norman Alterman, vice president of the Motion Picture Association of America; Mr. Leonard Feist, former president of the National Music Publishers Association; Mr. Vico Henriques, president of the Computer & Business Equipment Manufacturers Association; and Mr. Mort Goldberg, counsel for the Information Industry Association.

We welcome you here and look forward to your testimony, and we shall start with Ms. Risher.

STATEMENT OF A PANEL CONSISTING OF: CAROL RISHER, DIRECTOR OF COPYRIGHT, ASSOCIATION OF AMERICAN PUBLISHERS, WASHINGTON, DC; NORMAN ALTERMAN, VICE PRESIDENT, MOTION PICTURE ASSOCIATION OF AMERICA, INC., WASHINGTON, DC; LEONARD FEIST, FORMER PRESIDENT, NATIONAL MUSIC PUBLISHERS' ASSOCIATION, NEW YORK, NY; VICO E. HENRIQUES, PRESIDENT, COMPUTER & BUSINESS EQUIPMENT MANUFACTURERS ASSOCIATION, WASHINGTON, DC; AND MORTON DAVID GOLDBERG, PROPRIETARY RIGHTS COUNSEL, INFORMATION INDUSTRY ASSOCIATION, WASHINGTON, DC

Ms. RISHER. Thank you. Ambassador Nicholas Veliotes, the incoming president of AAP, regrets that he cannot be here today to present the position of the association. He does not assume office until May 1, so I will appear in his stead. But I assure you that my presence does not reflect any diminution of the intensity of these views.

The AAP strongly supports the U.S. adherence to the Berne Convention. However, the association must express its concern that Berne adherence not become a device that intentionally or inadvertently disrupts domestic law in a fashion that will require changes in the way American publishers do business or interfere with existing or future contractual relationships.

Our support for Berne adherence is based on the following principal considerations. The market of the American publishing industry and the copyright community itself is increasingly a global one. We cannot afford to view copyright matters on a parochial, national basis.

Just as our markets have become international, so too have the problems and issues faced by copyright in a technological era. The United States has properly sought to assume a leadership role in the exploration and resolution of these issues, but the plain fact is that within the world copyright community our country's stature and influence have remained substantially diminished by our continued failure to adhere to the most important international copyright convention and to assume the obligations accepted by the members of the Berne Union.

Three new laws passed last Congress attempt to stem the wave of foreign piracy of American-copyrighted works-the CBI, the GSP Renewal Act, and the International Trade and Investment Act.

In these measures, this administration and the Congress make clear their intent to protect American copyright proprietors abroad by encouraging foreign countries to adopt new and improved copyright laws.

The AAP has been a major participant in the development and implementation of these efforts and is deeply appreciative of the commitments made by our Government. Yet, this country's failure to adhere to the Berne Convention has been repeatedly tossed back by pirate nations as precedent for low-level or no protection of our works.

Another reason for Berne adherence is the inadequacy of the U.S. current multilateral copyright relationships based principally on the Universal Copyright Convention administered by Unesco. The UCC provides a lower level of protection than the more detailed and explicit provisions of the Berne Convention.

Additionally, Unesco's attentiveness to copyright has been diminished by the influence of the Third World, and U.S. withdrawal from Unesco has removed any semblance of effective participation in that agency's copyright agenda and budget.

Adhering to Berne will serve as a meaningful precedent for other countries that have remained outside the multilateral copyright

conventions.

For these reasons, we strongly support U.S. adherence to Berne, with one major qualification. Our concern with the effects of Berne adherence is based on the provisions of article 6 bis of the Convention.

This provision is denominated as one according moral rights and as assuring authors' honor and reputation. We do not quarrel with these principles, nor do we wish to tread upon the legitimate interests of individual authors and their creative works.

Instead, our concern is focused on the ambiguity of article 6 bis. Legitimate moral rights of authors are protected under existing domestic law. The equally important interests of publishers are also protected. Adherence to the Berne Convention must not be viewed as a change in this situation. AAP believes that adherence to the Convention must be accompanied by congressional and administrative assurances of the following:

One, that the Convention is not viewed as self-executing; that it does not override domestic law nor be construed based upon other countries' legal principles.

Two, that our Government views existing law as fully compatible with article 6 bis and intends no change in our law, whether as a legislative or judicial matter.

Three, that the U.S. Government believes moral rights can be dealt with as a matter of contract, understanding, custom, or the like.