Fourth, and finally! Is U. S. adherence to the Berne Convention

a practical possibility?

Here my answer would be "not easy, but entirely possible." Because of their divergent origins, the U. S. copyright statute and the Berne Convention are inconsistent on certain points; the usual wet blankets and nay-sayers will have ample opporturity to pick flaws But I believe that the Anerin any program aimed at U. S. adherence.

ican copyright community has finally begun to realize that the stakes here are higher than they have ever been: they are, in fact, the very preservation of an effective system of copyright protection. changes in the U. S. law to conform to the Berne Convention would be

Some

a small enough price to pay for the survival of copyright itself.

Hon. CHARLES MCC. MATHIAS, Jr.,

Chairman, Subcommittee on Patents, Copyrights and Trademarks, Committee on the Judiciary, U.S. Senate, Washington, DC.

DEAR SENATOR MATHIAS: Thank you for your letter of May 30, 1985, in which you posed two additional questions relating to the possibility of U.S. adherence to the Berne Convention.

Your first question asks for elaboration of my reference to "the challenge of developing countries to traditional principles of copyright protection and enforcement" as being "another by-product of the new technological era." My personal knowledge of this situation is limited to the period before 1980, when I retired as Register of Copyrights, but I have no doubt that the problem of lack of enforcement of copyright laws has grown worse since then. There is, in my opinion, no geographical region in the world where this problem does not exist, but it is severest in those countries with a strong demand for English-language informational, educational, and technical materials and no hard currency to pay for them.

The 1971 revisions of the Berne and Universal Conventions contained concessions aimed at meeting these demands, but the legal machinery required of the developing countries in order to take advantage of these concessions has apparently proved too onerous. Reproducing equipment of all sorts is so readily accessible and so inexpensive to obtain and use that there is a great temptation to ignore copyright obligations for what is perceived as the greater public good. Without rigorous enforcement by governmental authorities these patterns of copyright evasion and poaching become established and grow.

To combat this pernicious tendency requires careful, delicate diplomatic negotiations, both directly with the governments concerned and indirectly in intergovernmental forums. My point here is that our failure to adhere to the Berne Convention has greatly weakend our ability to negotiate directly, and has deprived us of the forum necessary for us to participate in intergovernmental action.

This is, in part, the answer to your second question, which asked how U.S. adherence to Berne will reach the pirates, and whether the pirates are members of the Berne Convention. Let me make three points in this connection:

First, a number of countries, upon obtaining independence or shortly thereafter, woke up to find that they had become members of the Berne Union. In some cases the action has been taken by declarations made on their behalf by the former colonial administration, and in others it has been taken by the newly-independent government itself for reasons of prestige and without realizing the obligations it entailed. In some of these countries there is a tendency to associate the Berne Convention with the burdens of colonialism and, where it suits the government's purposes, to turn a blind eye to copyright poaching and even to piracy.

Second, where a country is a member of the Berne Union, other Berne members can undertake diplomatic measures to seek governmental enforcement of copyright laws with respect to works of their nationals. Lacking Berne membership, the United States is in a very weak position when it comes to measures of this sort. Third, with respect to countries outside the Berne Union, several approaches are possible. There will always be pirates, but through concerted action Berne members can seek to establish a cordon sanitaire to limit the dissemation of the pirates' products beyond their borders. Diplomatic pressures can be brought to bear on governments to enact laws and regulations protecting foreign copyrights, to enforce the laws they have, and even to join one or both of the international treaties. The ability of the United States to undertake or join in these initiatives is greatly hampered by our failure to belong to the Berne Union.

Sincerely yours,

BARBARA RINGER.

Senator MATHIAS. Our next witness is Donald C. Curran, Associate Librarian of Congress, who is the Acting Register of Copyrights. Mr. Curran.

STATEMENT OF DONALD C. CURRAN, ACTING REGISTER OF COPYRIGHTS, LIBRARY OF CONGRESS, WASHINGTON, DC, ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSEL, AND LEWIS FLACKS, POLICY PLANNING ADVISER

Mr. CURRAN. Thank you, Mr. Chairman.

I would like to introduce my two associates, Dorothy Schrader, our general counsel, on my right, and Lewis Flacks, policy planning adviser and specialist in international copyright matters, is on my left.

I am pleased to be here today to endorse the objective of U.S adherence to the Berne Convention for the Protection of Literary and Artistic Works. The Copyright Office's support is based upon our belief that our membership will strengthen the Union, and will benefit American intellectual property interests around the world. Our support is based on two assumptions: That certain provisions of our law-specifically, those dealing with deposit, registration, and recordation matters will be maintained substantially unchanged; and, second, that there is broad support for adherence from the entire copyright community and the public.

What are the benefits of adherence to this treaty at this time? There is no guarantee of any immediate, large economic gain to U.S. interests. The problems of international piracy of books, motion pictures, sound recordings, and computer software will not evaporate if we adhere to Berne, because the nations perceived to be the sites of major piracy generally are not members. The positive balance of trade for U.S. copyright industries as a whole is a function of foreign demand for U.S. works, largely in states party to both the UCC and Berne. In the near term, trade balances depend more on relative strengths of the dollar and business cycles than on copyright treaty relationships.

The objectives and benefits of Berne adherence should be a substantial, if gradual, improvement in the international copyright environment. By playing an active role in the Berne Union, the United States can work to ensure that its position is given full weight in this important forum where international copyright policy is shaped. By adhering to Berne, the United States would support the level of legal rights afforded by Berne.

As long as we remain outside, our voice is formally unheard there and may be discounted to some extent in developing countries where U.S. copyright interests have serious concerns.

We will have to adjust our copyright law in certain respects to join. At the same time, we believe there are areas where the states of the Berne Union will have to tolerate or accept certain fundamental U.S. copyright practices including the public registry and deposit provisions of the law. For, after all, the purpose of U.S. entry is not to alter U.S. law, but, by reasonable accommodations with other states, to bring the totality of U.S. copyright philosophy, politics, law, and commercial practices into the growing body of international copyright law under Berne.

While the Library of Congress uses many sources of acquisition, copyright registration and deposit continues to be a key element of our total acquisitions effort. We believe that the Library's stature as one of the world's great libraries is due in substantial part to our copyright system and the time-honored relationship between copyright and the Library of Congress. Since 1870 the Library has the responsibility for administering the U.S. copyright law, and in many ways the modern Library has been built on this arrangement.

Just as deposit benefits many sectors of American society, so, too, do the public records of the Copyright Office, maintained as part of the registration and recordation procedures long established under American law. These records perform a variety of functions: Providing prima facie evidence of the ownership and validity of copyrights; indicating the scope of claims to copyright with substantial precision; facilitating commercial transactions such as transfers and licenses; creating a record that is open to all to search for various commercial, scholarly, or bibliographic reasons.

The Copyright Office believes that the deposit, registration, and recordation provisions of the present law are substantially Bernecompatible, provided that adjustments to our law are made so that the copyright notice provisions are brought into compliance with Berne.

There are three distinct classes of legislative issues to be addressed in evaluating whether it is in the best interests of the United States to adhere to Berne. They are: formalities, serious impediments to adherence in present U.S. law, and minor divergences from Berne in the present law. I would like to briefly describe each of these, and, of course, in our full statement we cover them in considerably more detail.

Given that conditioning full-term copyright upon the use of the notice is a prohibited formality under Berne, that portion of the law must be changed. To the extent that they are in whole or in part notice-related, the registration, recordation, and deposit provisions must be modified. The renewal and manufacturing clause provisions of the present law appear incompatible with Berne. If the manufacturing clause expires as scheduled, that matter becomes moot; but, the renewal issue requires very careful consideration and legislation. Many contracts exist for which the continuation of the renewal requirement was an important assumption of the parties when these contracts were entered into.

All the questions concerning moral rights, some of which are available piecemeal under a variety of State and Federal statutes and judicial decision, are extremely important, and some modification of Federal law is probably required. The jukebox compulsory license appears contrary to Berne. Although not in and of itself an impediment, the question concerning whether some or all of the provisions of Berne are self-executing requires careful attention and resolution. And, finally, retroactivity: Must the United States restore copyright to any works now in the public domain in this country?

While the range of witnesses you will hear at this and later hearings will likely disagree as to the seriousness of various inconsistencies between present U.S. law and Berne, the following seem worthy of attention: How does our law square with Berne regarding a variety of public performance, broadcasting, and cable television issues; and, is U.S. law limiting the subject-matter protection and/or rights in architectural works compatible with Berne?

Lest these questions suggest that the Copyright Office believes that U.S. law is now largely incompatible, let me assure you otherwise. Most of our law concerning deposit, registration, and recordation can and should remain in force. Berne and U.S. law regarding the mechanical reproduction of music, works of applied art, and works made for hire seem compatible, and U.S. fair-use law and practice comport with Berne and the practices of some of its members.

The Copyright Office has been privileged to sit in on a series of fascinating meetings held under the auspices of the Authors' League of America. These meetings bring together individuals well known in copyright circles who are working in their individual capacities. They are trying to assess where technical incompatabilities between U.S. law and practice and the Berne Convention may be found to exist; to delve more deeply into the nature of any conflict; and hopefully, to consider possible frameworks for the accommodation of domestic interests so as to permit adherence to Berne; if and when a favorable decision is taken.

It has been interests in and of the private sector that, in the past, have resisted our entry into Berne. It is largely the private sector-proprietary interests, commercial users, and noncommercial users who must reach tentative accommodations for changes in U.S. law to make it consistent with Berne obligations. With the support of the Congress, they should have the time to develop a

consensus.

Thank you, Mr. Chairman. We are, of course, ready to answer your questions. In addition, I would like to express our desire to continue to assist the Congress and this committee in any appropriate ways in this endeavor.

Senator MATHIAS. I am very interested, Mr. Curran, in the kind of historical perspective that you take in approaching this problem. You feel that active participation in the Berne Union will be beneficial to American interests overseas as far as intellectual property is concerned. I assume that you take this position because you think this is another step on the road to the recognition of the rights of intellectual property.

Mr. CURRAN. Yes, sir. Much of what has been said by other witnesses here today, we would completely agree with.

Senator MATHIAS. It has been a long road, starting from the time mankind recognized that a particular spot of ground or a particular piece of personal property, a domestic animal, was susceptible of being reduced to individual ownership. It is a large jump from the ownership of some material goods, whether it is real estate or personal property, to the concept of ownership of a subjective idea, something which purely exists in the mind.

You feel this would be one additional step that would give some form, some corporal form, to this insubstantial property?

Mr. CURRAN. Yes, sir. As I have indicated, the Copyright Office and the Library look favorably on this process, and, of course, we feel as the office responsible for administering the copyright law in the United States there are some very significant and important considerations here, which obviously we do not know the answers to and we are not purporting to represent all the answers and all the positions. We think that a considerable amount of work needs to be done and some of that is underway already. This hearing today is the beginning of that process, and we would like to see this process continue in an orderly fashion and that we see all the interests have an opportunity to be heard and thoughtful consideration be given the matter and we advance hopefully in a direction which will allow the United States to adhere to Berne for the reasons we stated.

Senator MATHIAS. The Congress is very proud of its Library. We think the Library of Congress is one of the great institutions not only in Washington but in the Nation. Over a period of 200 years we have slowly accumulated a collection of books which numbers around 13 million volumes. A large part of that collection has been accumulated as a result of registration and deposit. Do you see any problem with continuing that practice under the Berne Convention?

Mr. CURRAN. As I indicated, and I would like to repeat: There are potential problems; but, they are not insurmountable ones. It is a matter of sitting down and working on the process.

I would like to point out that the American copyright deposit system applies to more than just printed works. You mentioned 13 million books and, of course, that is true; but there are 80 million items in the collections of the Library, including millions of pieces of music, thousands and thousands of motion pictures, maps, photographs, the kinds of things which in many deposit systems around the world are not covered nationally as deposits. Our system, through its link to copyright, has acquired those things as a national treasure, as a great cultural resource. We believe that it is possible to adhere to Berne, to make changes in the notice requirement as might be needed and still retain such an acquisitions system. There are some fine questions here that will need some attention. Certainly, however, the answer to the larger question is, we think, yes, we can do so and we would certainly expect that our adherence would allow us to do so.

Senator MATHIAS. So you do not see any overriding objections from your office?

Mr. CURRAN. No, sir; not on that point.