22. E In an amendment before the Dail there are proposals to In the next decade what do you perceive as the primary cost of a computer system hardware, software, or other items, for example telecommunications links? There was a general consensus that in the next decade the primary cost will shift to software, followed by telecommunications, then by hardware. Senator MATHIAS. Ms. Risher, as I understand it, the publishers like the status quo on the moral rights question, is that correct? Ms. RISHER. We believe there are sufficient moral rights protections in the United States, yes. Senator MATHIAS. Leaving to one side any controversy between creators and proprietors on this issue, is it the publishers' position as a legal matter that we could adhere to Berne without any change in the copyright law on the question of moral rights? Ms. RISHER. Yes, it is the publishers' position. In fact, in our statement we make clear that that is the position we wish to take. Senator MATHIAS. In your statement you also at least imply that you think that the Berne Convention's position on moral rights is ambiguous. Ms. RISHER. Yes. If Berne were self-executing, our members would be inhibited from properly conducting business because of the threat of claims and disputes that, for example, a particular revision of a school textbook or other particular work, whether consented to by the author or sanctioned by customer circumstance, is a distortion. We do not think publishers should be forced to deal with assertions that they violated legal norms by not identifying as an author one of many individual contributors to a work produced at the initiative and under the coordination of the publisher. We would like clarification concerning article 6 because if Berne is self-executing, then this ambiguity can be brought into play. Senator MATHIAS. Is it your belief that these are the kinds of problems that publishers have had in Berne countries? Ms. RISHER. No, but our society is far more litigious than other Berne countries. [Laughter.] Senator MATHIAS. Well, that may be. Have there been, to your knowledge, any unhappy consequences from the broad moral rights protections in the Berne countries? Ms. RISHER. To our knowledge, there have been none, and we understand that other Berne countries have laws that are substantially similar to ours concerning moral rights, and that is why we believe that our law is sufficient. Senator MATHIAS. One of the subjects that has occupied a lot of time in this committee is the home taping question. It has been very vexatious and has given me a lot of publicity in record stores and cassette shops that I did not seek. [Laughter.] How do you believe the Berne Convention would be better able to handle problems of home taping, let us say, than the Universal Copyright Convention? Mr. ALTERMAN. I will take a stab at that one. I am not sure that it is necessarily better able to handle that particular problem than the UCC. I think that that is one subject on which there is, at best, guidance in the Berne Convention that the proprietor should not have his work used in an uncompensated manner that does not comport with the accepted definition of fair use. But in the case of the Berne Convention, at least, it leaves it pretty flexible for the individual States to interpret, and I think it has been interpreted flexibly by the individual States. Our law would not be out of step. Senator MATHIAS. You acknowledge that we could get a quick fix by adopting a two-tier system, but you say that would be inherently unjust and contrary to the American way of life. If, however, we did at least have a little quick fix, as Mr. Karp suggested a few minutes ago, and at least got our toe in the water, would that affect the support of the MPAA? Mr. ALTERMAN. No; it would not. Senator MATHIAS. Not if it was a small enough fix? Mr. ALTERMAN. I think I would like to perhaps amplify that in this manner. There will be a lot of details, including the two-tier system, that will have to be addressed in the course of any action that is taken to adhere to Berne. I believe that if we keep our eye on the goal of adherence to Berne and joining the international community, then we will find solutions rather than problems. Senator MATHIAS. Yes. Mr. ALTERMAN. And if the solution to a particular difficulty is that there should be a dual system, we will not oppose it. Senator MATHIAS. One of the things which drives us to another consideration of Berne is, of course, our trade problems. That raises the question of the relationship between Berne and GATT. It has been suggested that we incorporate the Berne standards in a GATT code and apply the dispute resolution mechanisms of GATT to copyright disputes. What would then happen to the enforcement procedures that are available under Berne? Mr. GOLDBERG. Well, Berne, Mr. Chairman, has no enforcement procedures under the Convention itself, and certainly not under WIPO, the World Intellectual Property Organization. The enforcement is left to the national laws of the individual Berne member countries. There is a largely academic provision in the Berne Convention which states that disputes between nations can be referred to the International Court of Justice in The Hague. But even aside from the events of the last few decades as to the U.S. position on the ICJ, I am not aware of any copyright dispute under Berne that has ever gone to that tribunal. So the question remains as to how, more effectively, more adequately, disputes can be resolved. Since GATT does have an enforcement mechanism, a dispute resolution mechanism, it would appear that under GATT it would be possible to establish a code, an intellectual property code, so that the GATT could function as a forum for the resolution of such disputes. There is an anticounterfeiting code that is now being discussed in the GATT, and an intellectual property code, we hope, would also be adopted. Mr. ALTERMAN. There is really very little else to say. Senator MATHIAS. Well, the only other thing to say is whether anything ought to be done within Berne or whether the efforts being made in the GATT direction are adequate. Mr. ALTERMAN. I think one of the things that we should focus on is the fact that any dispute resolution mechanism within Berne would address purely the copyright law, and if you view the function of WIPO and the Berne Convention as setting the standards for the private resolution of disputes, which is what it really is, then that would be fine. You could deal with private resolution. But I think that the focus of attempting to incorporate intellectual property into the GATT is a trade-oriented focus. We recognize that trading goods is only one aspect of trade and that we here at this table at this particular moment are very conscious that it is not only goods that are traded. We have other items, for want of a better term, that fall under the rubric of intellectual property. We feel that GÁTT, as the trading mechanism regulating the trading relationships among the countries of the world, should be broadened to include our lines of endeavor. Therefore, we go beyond merely the copyright protections that might be afforded and the dispute mechanisms that might be accorded thereunder. Mr. GOLDBERG. Mr. Chairman, I think there is also the point that whether you are talking about Berne or GATT, adherence to Berne is essential, because if we do not belong to Berne, we cannot really have a voice in maintaining, sustaining, and possibly increasing the standards of Berne protection. Second, if we do not take effective steps toward Berne adherence, we lose some of the clout we would otherwise have in the GATT negotiations to establish a code based on the Berne standards. If we do not pursue Berne, those standards would be the standards merely of a convention that we have shown no interest in adhering to. It is hypocrisy if we do not move to adhere. Mr. ALTERMAN. I would like to add one other thing, if I may, and that is that those of us who have been working on the problem of GATT view that as a trade problem with trade solutions, and the trade solution would be the incorporation of a code under GATT that would cover the trading conduct. But you really cannot get to that code except by way of WIPO and the conventions it administers. For this reason, we feel that it is absolutely fundamental to the GATT approach that we be adherents to the Berne Convention. Senator MATHIAS. You establish the principles and then you establish the practice. Mr. ALTERMAN. Correct. Senator MATHIAS. One last question to Ms. Risher. U.S. law requires that published copies of works bear a notice of copyright. This has long been viewed as a formality that would make U.S. law incompatible with Berne. Is that right? Ms. RISHER. Yes. Senator MATHIAS. I suppose one of the obvious ways to achieve compatibility would simply be to eliminate the requirement of notice, but it does serve a useful purpose. Would you like to comment very briefly on the suggestions that have been made in the Copyright Office draft proposal? Ms. RISHER. I did not receive the suggestions from the Copyright Office in time to study them adequately, but I would like to say that the Association of American Publishers would like to remove burdensome formalities, but would be willing to consider a voluntary placement of notice and many of our publishers would continue to do so, as it would be in their best interest to do so. The specific references- Senator MATHIAS. What they suggested was, first, to exempt all works originating in a Berne country other than the United States. Ms. RISHER. We would support that. Senator MATHIAS. And, as an alternative, eliminate the notices of formality, but perhaps create some other statutory incentive that might induce authors to give notice. Ms. RISHER. Well, as I said, we have no problem with voluntarily putting notice on, and if there is an incentive that makes it in our best interest to do so, we would not object. But we would have to study what that incentive was and how it affected our ability to go into court and how it affected our ability to enforce our copyrights. Senator MATHIAS. You may not only have to study it; you may have to think it up. [Laughter.] Ms. RISHER. We would be prepared to work with you, Mr. Chair man. Senator MATHIAS. Well, as in the case of all these panels, we could go on all morning and it would be fascinating for me, but we have others who are waiting and I suppose we had better call panel No. 3. Mr. GOLDBERG. Thank you, Mr Chairman. Mr. ALTERMAN. Thank you, Mr. Chairman. Senator MATHIAS. Mr. August Steinhilber, associate executive director and legal counsel of the National School Boards Association; Mr. Ed Merlis, of the National Cable Television Association; Mr. Harry Olsson, of CBS; Mr. Elroy Wolff, of the American Music Operators Association. Gentlemen, do you have any preference? If not, we will ask Mr. Steinhilber to begin. STATEMENT OF A PANEL CONSISTING OF: AUGUST W. STEINHILBER, ASSOCIATE EXECUTIVE DIRECTOR AND GENERAL COUNSEL, NATIONAL SCHOOL BOARDS ASSOCIATION, ALEXANDRIA, VA, ON BEHALF OF THE EDUCATORS' AD HOC COMMITTEE ON COPYRIGHT LAW; EDWARD A. MERLIS, VICE PRESIDENT, GOVERNMENT RELATIONS, NATIONAL CABLE TELEVISION ASSOCIATION, WASHINGTON, DC; HARRY R. OLSSON, JR., GENERAL ATTORNEY, CBS, INC., NEW YORK, NY; AND ELROY WOLFF, AMUSEMENT AND MUSIC OPERATORS ASSOCIATION, WASHINGTON, DC Mr. STEINHILBER. Thank you, Mr. Chairman. I am delighted to be here before you this morning. I am chairman of the Educators' Ad Hoc Committee on Copyright Law, as well as being associate executive director of the National School Boards Association. The Educators' Committee consists of all nonprofit organizations, representing virtually every school, college, library, public, private, from kindergarten through college. In fact, it includes everything from the U.S. Catholic Conference to the NEA to the American Federation of Teachers. As a school board representative, I was elected chairman of the group by the votes of the teacher unions, and I am not quite sure where that places me organizationally. Senator MATHIAS. At any rate, you are talking for the consumers of a lot of books. Mr. STEINHILBER. That is correct, and as an aside, we have appeared before you many times, but in other capacities both on authorization and appropriations, and we thank you for the many years that you have helped us out. Senator MATHIAS. Well, thank you. Mr. STEINHILBER. I assume I was asked to join the working group on U.S. adherence to Berne because we, as educators, are a user group and we have often been critical of the copyright bar. We have not had time to formulate our position, since the ad hoc working group's papers have not been distributed until recently. But we have had some informal discussions and I would like to share those with you. As a voice of conscience, we will continue to remind everyone that copyright in the United States did not develop in the same manner that copyright developed on the continent of Europe. Copyright is a monopoly or a government license that must be carefully watched. The use of the term "intellectual property," we contend, sometimes is a misnomer, or at least not completely consistent with the development of U.S. law and tradition. While the Educators' Committee views copyright as a monopoly wherein the U.S. Government provides individuals with limited exclusive license to financially benefit them for the fruits of their labor, we need to encourage the development of new ideas. We seek to support those who would develop intellectual works so that our source of supply does not dry up. Creators need a financial incentive, or they will not continue to produce. For this reason, we support U.S. adherence to Berne if we do not lose the benefits that education enjoys under current copyright law. |