Senator MATHIAS. The subcommittee will stand in recess, subject to the call of the Chair. [Whereupon, at 12:08 p.m., the subcommittee was adjourned.] APPENDIX Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention FOREWORD This is a final report on the compatibility of basic provisions of the United States copyright and other relevant law with the Berne Copyright Convention. It was prepared by the Ad Hoc Working Group on U.S. Adherence to the Berne Convention ("The Ad Hoc Working Group"). This foreword discusses the formation and membership of the Group, its procedures (including those for completing its Final Report), the method for evaluating compatibility, and the fundamental distinction between "works of foreign origin" and "works of U.S. origin," which is central to evaluating the compatibility of the various. provisions considered in this Report. 1. Background On the eve of the 100th Anniversary of the Berne Copyright Convention (September 9, 1886), there is renewed interest in the United States accession to the Convention. In May of 1985, the Senate Judiciary Committee's Subcommittee on Patents, Copyrights and Trademarks, chaired by Senator Charles McC. Mathias, heard testimony. from several witnesses on the implications of U.S. adherence to Berne. Donald C. Curran, Associate Librarian of Congress and then Acting Register of Copyrights; Barbara Ringer, former Register of Copyrights; Arpad Bogsch, Director-General of the World Intellectual Property Organization ("WIPO"), which administers the Convention; Elinor Constable, Acting Assistant Secretary of State, Bureau of Economic and Business Affairs; Donald J. Quigg, Commissioner of Patents and Trademarks; and C. Michael Hathaway, Deputy General Counsel, Office of the United States. Trade Representative, all supported U.S. adherence to the Berne Convention. 2. The Ad Hoc Working Group Consideration of U.S. adherence to Berne involves a fundamental copyright issue: are the provisions of United States law compatible (427) with the provisions of the 1971 Paris Act of the Berne Convention?1 This is the Berne text to which the U.S. would accede if the President and Senate took the necessary action to make this country a member of the Convention. Article 36(2) of the Convention requires a country to "be in a position under its domestic law to give effect to the provisions of" the Convention at the time when it becomes a new member. At the request of the State Department, several individuals who have had long experience in the copyright field joined together as an "Ad Hoc Working Group" to identify those basic provisions of U.S. law relevant to U.S. adherence to the Berne Convention, and to analyze their compatibility with Berne. The issue addressed by the Group is: does the U.S. Copyright Act,2 other Federal and State statutes, and common law provide protection of the nature required by the Convention for works originating in other Berne membercountries? The Ad Hoc Group's purpose was to prepare a Report on this technical issue that might assist the Congress (including the Senate and House Judiciary Committees and the Copyright Office) and the Executive Branch, in their consideration of United States adherence to Berne. The Ad Hoc Working Group, as such, does not take any position on the basic policy question of whether the United States should join Berne. Some members believe it should, and some represent organizations which may support adherence. But the sole focus of the Ad Hoc Group's work, and this Report, is on whether relevant provisions of U.S. law are compatible with the Berne Convention. The Group does not make any recommendations for revisions of U.S. law that might be required to eliminate incompatibilities which may exist. 3. Membership of the Ad Hoc Working Group These are the members of the Ad Hoc Working Group. They served as individuals; the names of various organizations they represent or are affiliated with are given solely for identification and do not imply endorsement by those organizations of the Final Report: 1. Unless otherwise noted, all references in this Report to the "Berne Convention" and the Articles thereof refer to the 1971 Paris Act, which is the most recent text of the Convention. 2. Unless otherwise noted, all references in this Report to the "U.S. Copyright Act" refer to the Copyright Act of 1976, as amended, 17 U.S.C. §§ 101-810 (1982). Irwin Karp, Chairman [Authors League of America] Jon A. Baumgarten [Association of American Publishers] I. Fred Koenigsberg [American Society of Composers, Authors & Publishers] William Maxwell [Computer & Business Equipment Manufacturers Association] Gary Roth [Broadcast Music, Inc.] Hamish R. Sandison [Recording Industry Association of America] Augustus W. Stein hilber [National School Boards Association] Robert Wedgeworth [American Library Association] EX OFFICIO: Harvey J. Winter, Executive Secretary [Department of State] Lewis Flacks [Copyright Office] Michael S. Keplinger [Office of Legislation and International Affairs, U.S. Patent and Trademark Office] 4. Method of Procedure At its initial meeting, the Ad Hoc Working Group decided on the fourteen basic subjects that should be studied. These are listed in the table of contents of this Report. Members of the Group drafted study papers on each subject, and these were reviewed and revised by the Group. These papers, constituting the chapters of this Report, are presented as the joint work of the Group and represent a general consensus, but this does not imply unanimous agreement of the Group on any particular point. The Preliminary Report was distributed to individuals and organizations interested in copyright matters and the question of U.S. adherence to Berne, and they were invited to submit their comments in writing. These comments are printed in the Appendix. Also included in the Appendix is the Copyright Office's submission of April 15, 1986 to the Senate Judiciary Subcommittee on Patents, Copyrights and Trademarks entitled "Implementing Legislation to Permit U.S. Adherence to the Berne Convention: A Draft Discussion Bill and Commentary." The Ad Hoc Working Group has reviewed all these written comments and has made such revisions in the Final Report as it deemed necessary. 5. "Compatibility" and Works of U.S. Origin The Report's conclusion that certain provisions of U.S. law are incompatible with Berne applies only to works of foreign origin. The Berne Convention does not require that a member country grant the protection required by the Convention's text to works of which that country is "the country of origin." Article 5 of the Berne Convention provides: (1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention. (emphasis added) (3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors." The question of incompatibility, therefore, is really a question of whether a given provision of U.S. law is incompatible with Berne's requirements when that U.S. provision is applied to works of foreign origin. For example, section 601 of the U.S. Copyright Act limits the right of authors to import or distribute in the United States copies, manufactured outside the U.S. or Canada, of a work that consists preponderantly of nondramatic literary material in English. Berne provisions do not permit that limitation. But section 601 is not incompatible with Berne when it is applied to works of U.S. origin. From the U.S. perspective, provisions of U.S. law would have to be compatible with Berne when applied to: (a) works first published in another Berne country, alone or simultaneously with publication in any other country (except the U.S.), Berne or non-Berne; (b) works first published simultaneously in the U.S. and another Berne country which gave a shorter period of protection; or (c) works first published in a non-Berne country without a simultaneous Berne-country publication, if the author is a national of any Berne country other than the U.S.; (d) unpublished works by nationals of other Berne countries. Under Article 5(4) of Berne, these are works of which the U.S. is not the country of origin. |