Senator MATHIAS. Under the Universal Copyright Convention, U.S. copyright holders obtain national treatment for copyrighted works in a large number of countries. The number is something like 75 countries, many of whom are already members of the Berne Union. To the extent that these countries are parties to both of the treaties and have copyright laws that reflect their obligations under the Berne Union, are not we already enjoying about all the benefits that we could expect to enjoy if we became members? Mr. CURRAN. There is a point here which the copyright experts, who are more familiar than I, refer to as entry by the back door of Berne, and I would like our general counsel to explain that relationship. There are reasons, however, to feel that this is not been altogether satisfactory and that the back door could be closed. But as has been mentioned repeatedly by other witnesses, the absence of the United States from Berne still keeps you out of the policy formulation matters that full participation in the Union would allow. May I ask Ms. Schrader to respond specifically to your point? Senator MATHIAS. Sure. STATEMENT OF DOROTHY SCHRADER Ms. SCHRADER. Yes, Mr. Chairman, there are actually two ways in which we, in effect, get Berne-level protection: possibly through the back door to Berne, as Mr. Curran has said, and also by membership of Berne countries in the UCC, of which, of course, the United States is a member. The Berne Union recognizes the place of first publication as one basis for protection of works, if the country is a member of the Berne Union. In theory the United States would gain protection in all countries that are members of the Berne Union by first publication in a Berne Union country such as Canada. At one time it was the United Kingdom where that first publication took place. Frequently now it is done in Canada. The efficacy of this protection has never been thoroughly tested. There is the potential under the 1914 Protocol to the Berne Convention for the members to close the so-called back door by retaliating in the case of nationals of nonmember countries whose first publication is effected in a Berne country. Again, this is theoretical. The back door has not been fully tested nor has the closing of the back door been fully tested. As to membership in UCC-the protection is rather clear. The Berne member countries are required to give national treatment under the UCC. Since their laws are supposedly in compliance with the Berne Convention, that means that we should get national treatment at the level of Berne Convention through our membership in the UCC. There are, of course, some 24 states that are members of Berne and not members of the UCC, and we have listed those in an appendix to our statement on the very last page. Of course, as to these countries we would have to try to use the back door approach if we seek to get Berne protection. Senator MATHIAS. Finally, let me ask the same question I asked Ms. Constable. Do you think the United States or its citizens have in any way suffered disadvantages by our failure to adhere to the Berne Convention? Mr. CURRAN. I think that regarding the disadvantages I would basically concur in her remarks. The disadvantage is the absence of the opportunity to more fully participate in the deliberations of the Berne Union. To a certain extent, I think it is more attitudinal than economic, as I tried to indicate. So I am not quite sure that there are however, there may be more specific disadvantages and perhaps Mr. Flacks, who is much more familiar with this in a technical sense, could add a comment in that regard. STATEMENT OF LEWIS FLACKS Mr. FLACKS. I would only echo an observation which was made by Ms. Ringer and the distinguished Director General of the WIPO. A lot of questions are being asked about what we get out of joining Berne. We have the back door; we have national treatment through the UCC. I think what the American people have lost, what our ideas of copyright justice have lost is that we do not bring our own views into the Berne Convention. Now, you can always obtain protection through the UCC indirectly, but you cannot influence the development of the international principles of copyright and authors' rights except by being in the Berne Union. If we do take issues of authors' rights as economic and human rights quite seriously, then we must recognize the paramount role of the Berne Convention in determining the international protection of authors' rights; these are the issues about which this country should have something to say and for which we should accept the responsibilities of political leadership as a consequence of our economic influ ence. Senator MATHIAS. Thank you very much. We will have some additional questions which we will propound to you in writing and request your answers for the record. Mr. CURRAN. Thank you for having us, Mr. Chairman. [The prepared statement of Mr. Curran and responses to written questions of Senator Mathias follow:] STATEMENT OF DONALD C. CURRAN Before the Senate Subcommittee on Patents, Copyrights Senate Judiciary Committee Mr. Chairman, I am Donald C. Curran, Associate Librarian of Congress, and since January 2, 1985, Acting Register of Copyrights, pending the appointment of a successor to David Ladd, who resigned at the end of 1984. We appreciate the opportunity to appear here today to discuss various aspects of the Berne Convention and United States adherence to it. Adherence to the Berne Convention by the United States Government is a desirable objective; the Copyright Office of the Library of Congress supports and encourages adherence. We do so in the belief that our Nation's full and active participation in the Berne Union will strengthen the Union and will be beneficial to American interest in intellectual property around the world. 1/ We recognize the special responsibility of the Copyright Office to be concerned about the rights of copyright owners, and the needs of users of copyrighted works. Our comments today are intended to be neutral in that we do not purport to favor one interest over another whether owner or - user. - 1/ The United States is presently a member of another world-wide copyright convention the Universal Copyright Convention which has 78 adherents. This Convention now provides significant protection for United States works abroad, and our membership would be maintained even if the United States should join the Berne Union. The issues to be considered are not always self-evident. Careful consideration must be given to all aspects of our adherence to the Convention. We are here today to assist in that process. I. GENERAL OBSERVATIONS ON UNITED STATES ADHERENCE TO BERNE - The question of whether the United States ought now to seek adherence to the Berne Convention for the Protection of Literary and Artistic Property (hereafter, "Berne") is the most important international copyright issue the United States has had to consider in many years. Recognizing that sentiment in and out of government appears to be building in favor of United States adherence to Berne at least in principle the Copyright Office has begun to study carefully the Convention's requirements, the relationship of those requirements to our present Copyright Act, and, in particular, how United States adherence to Berne might require or provide the occasion for changes in those aspects of the copyright laws which directly relate to the mission and public services of the Library of Congress and the Copyright Office. Our testimony today is therefore tentative; as congressional action progresses, we would hope that there will be opportunities for us to comment in more detail on particular implementation questions. An internal educational and discussion process is underway in the Copyright Office. 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 United States 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. Because many 50-320 - 87 - 3 of the major issues surrounding adherence to Berne concern the private sector, including users of copyrighted works, we attach special importance to the Authors League effort and to any similar endeavors. It has been interests in It is the private sector that in the past have resisted our entry into Berne. largely the private sector proprietary interests, commercial users, and noncommercial users - who must reach tentative accommodations for changes in United States law to make it consistent with Berne obligations. With the support of the Congress, they should have the time to develop a consensus. Mr. Chairman, the Copyright Office is favorably disposed toward United States adherence to the Berne Convention. This support in principle is subject to two assumptions: 1) that certain fundamental principles of our law deposit-registration-recordation provisions specifically, the are maintained; and 2) that the perceived benefits of United States adherence in fact lead to a public and political consensus about the necessary changes in our law to make it consistent with the minimum obligations of Berne. Berne adherence would then appear to be a step fully compatible with the emergence of the United States as a major exporter of copyrighted materials whose protection abroad is more often than not determined by the laws of states bound by the Berne Convention. The insularity of United States international copyright policy was broken in the mid-1950's by the adoption of the important Universal Copyright Convention; and, the enactment of the 1976 Copyright Act removed some, but not all, of the major impediments to United States adherence to Berne. Others, from the C Administration and the private sector will doubtlessly explain how United States adherence to Berne may promote the protection abroad of important American cultural exports. 2/ The Library of 2/ If we adhere to the Berne Convention, the United States will thereby regularize its copyright relations with some twenty-four states which adhere to Berne but not the Universal Copyright Convention. A list of these states appears at Appendix A. |