PREPARED STATEMENT OF BARBARA RINGER The Berne Convention and the United States Although few people in this country have ever heard of it, the Berne Copyright Convention--the International Convention for the Protection of Literary and Artistic Works--has affected all our lives. For nearly a century it has operated invisibly but powerfully to establish the norms or standards of copyright protection throughout the world, and these standards in turr. have shaped our culture and intellectual life. The Berne Convention is a genuinely great organic document, conceived for noble purposes, brilliantly thought out, drafted, and revised by experts, resilient in the face of continual political and technological pressures, and effective in accomplishing its aims. Many copyright provisions throughout the world are copied word-for-word from the Berne Convention, and membership of a country in the Berne Copyright Union carries with it national prestige, enhancement of the status of the country's authors and their works, and enforceable tection in other countries. pro Given the very real advantages of Berne membership, one may well ask why the United States has never taken the steps necessary to join. The answer is as plain as it is depressing. At the point, early in this century, when the Berne Union actively sought U.S. adherence and clearly would have met us more than half way, the United States simply tumed its back. As a result, the Berne Convention and the U.S. copyright law took off in opposite directions; by the end of World War I, when it dawned on the American copyright community that we had become an exporter of cultural materials and needed protection abroad, it was too late. Throughout the 1920's and 1930's there were continual efforts to reverse the error--to enact a general revision of the 1909 U.S. copyright statute to enable us to join the Berne Union--but all of them came to nothing. The differences were too great. With this dismal history fresh in their minds, the policy-makers after World War II decided that if they could not join the old club they would form one of their own. The resulting Universal Copyright Convention of 1952 was referred to as a "low staircase" or "bridge" convention leading toward Berne membership, but with far less minimum requirements than those of Berne. The U.C.C. was developed under the auspices of Unesco and that organization, rather than the Berne Bureau, became its secretariat. Although in large part the result of U.S. initiatives, the Universal Convention attracted an increasing number of adherences, especially among developing countries which found its lack of minimum requirements attractive. The Situation Today It is no exaggeration to describe the current situation of the United States in international copyright matters as a state of emergency. Consider the following five factors: (1) Cascading technology is overrunning copyright protection. and is threatening to drown copyright altogether. Legal rights in new technological uses are not always clear, and even where rights are clearly defined they are often impossible to enforce. Unauthorized uses by entrepreneurs and individuals have become extremely easy and cheap, and the ability of copyright owners to control their markets is becoming increasingly difficult. Bad as this is at the domestic level, it is much worse internationally. (2) Rampant piracy is the most obvious and dramatic product of the technological revolution in copyright. Piracy is so easy and financially attractive that the horse-and-buggy mechanisms for conbatting it have simply broken down. (3) The challenge of developing countries to traditional principles of copyright protection and enforcement is another by-product of the new technological era. A combination of political, economic, and social factors--including an urgent desire for access to educational and technical materials and the lack of hard currency with which to pay for them--have led some developing countries to tolerate ar encourage extensive inroads into copyright owners' legal rights. Sometimes this is done openly and defiantly. More often it is accomplished by the deliberate failure of government officials to enforce existing laws and treaty obligations, all the while protesting their government's devotion to copyright principles. This problem has reached epidemic proportions in some areas. (4) Lack of an intergovernmental base. Although the United States remains a member of the Intergovernmental Copyright Committee, the governing body of the Universal Copyright Convention, our recent withdrawal from Unesco cannot fail to impair our already diminished effectiveness in the international copyright arena. One can cling to the hope that international politics can be kept out of copyright discussions as much as possible, and that the atmosphere for the United States at conferences and meetings does not become any more poiscred than it already is. But the fact remains that, or whatever reasons, the United States can no longer exercise the leadership role it once had in international copyright. (5) Deficiences in the U.S. copyright law. A major difficulty facing U.S. negotiators in copyright matters is resentment against what some other countries perceive as our hypocrisy. If we adopt a tone of high moral indignation about piratical practices in certain countries, we can expect to have it pointed out that our own level of 7 protection is full of gaps and limitations. More serious. is the attitude of the old-line Berne countries, some of which still view us as nothing less than an international copyright outlaw. They can say, with considerable reason, that we are taking a free ride at their expense--that the United States enjoys nearly complete protection at the Berne level for our works in their countries, but that we deny their copyright owners full protection in this country. The 1976 U. S. Copyright Act went a considerable distance toward compliance with the Berne Conventions requirements, but there is still a considerable distance to go. Other countries cannot understand why the United States--one of the world's largest and richest industrial powers and a leading exporter of cultural goods--is missing from the vanguard of international copyright protection. What Is To Be Done? It is hard for anyone to deny that the situation of the United States in international copyright is bad and getting worse. It is certainly not too early to start defining the scope and nature of the problem and exploring alternatives for possible solutions. At this juncture there seem to be four fundamental questions to be considered: First: Is the Universal Copyright Convention still sufficient for the protection of U.S. interests? The answer to this question must be "no." To garner international cooperation in developing a program to resolve the current copyright emergency, the United States must take a leadership role, and to do this we must have a firm intergovernmental base from which to operate. For the reasons already described, the Universal Copyright Convention is currently too weak and politicized to provide that base. Second: Is there an alternative beyond the UCC but short of full adherence to Berne? Possibilities along this line might include: (a, developing a whole new convention, with protection at a level different from that of either the UCC or Berne; (b) giving new international copyright jurisdiction to an existing intergovernmental organization other than WIPO or Unesco, such as the GATT; or (c) inducing the members of the Berne Union to develop some sort of subordinate, intermediate, or temporary convention that would allow the United States to join the Berne Union without accepting its full obligations immediately. These and other possibilities are sure to be put forward in the months ahead; they should, of course, be given full consideration as long as they are not allowed to sidetrack efforts to find solutions within the framework of the Berne Convention itself. As of now, however, none of these intermediate possibilities strikes me as either practical or desirable. Third: Is U. S. adherence to the Berne Convention desirable? reasons: Internationally, it would enable our country at long last to meet its moral obligations in international copyright. For the first time we would be able to hold up our head as f ull partners in a concerted effort to resolve the enormous problems facing the entire world copyright community. As members of the Berne Union we would be able to count on cooperation from other industrialized nations, and to draw on the expertise and dynanism of the WIPO secretariat. Domestically, adherence to Berne would for the first time bring the level of the U. S. copyright law up to something resembling the international norm. People in this country are finally beginning to realize how much the failure to offer adequate intellectual property protection has cost our nation, and in particular how foolish and self-defeating our stingy, formality-ridden copyright statutes and policies have been. For the future, the technological trends that are already in motion are certain to continue and proliferate--and, as the |