intended to accord considerable discretion to member countries in dealing with such works. Its failure to provide a specific term of protection for all works made for hire need not compel the conclusion that the states must fit their terms of protection for such works into categories designed for other purposes. As noted above, at least two Berne countries appear to have adopted ad hoc rules, as a matter of necessity, for works of corporate or like authorship; additional variations from the Berne standards may exist under the laws of other Berne countries in particulaṛ cases. For example, Article 22 of the French Copyright Act of 1957 and Article 26 of the Italian Copyright Act of 1941, as amended, accord a term of 50 years from publication to "collective works" (a category that is defined differently in each country, but that in each case would include some, though not all, U.S. works made for hire). But such terms would not fall under the Berne standard for "anonymous" works if the publisher is considered the "author" (see fn. 2, page 6, above) or if the creators' names are used on the work, and are not otherwise supported in the text of the Convention.10/ 10/See also, Japan, Law No. 48 of 1970, as amended, Art. 53 (copyright in "works bearing as the name of the author that of a legal person or other corporate body" endures for 50 years from making public or from creation; provision inapplicable where copies made public with name of natural author); cf. id., Art. 15, noted in fn. 2, above. Implementing Legislation to Permit U.S. Introduction The staff of the U.S. Copyright Office, at the request of the Chairman of the Senate Judiciary Subcommittee on Patents, Copyrights, and Trademarks, Senator Charles McC. Mathias, Jr., of Maryland, and in cooperation with the Subcommittee staff, has prepared this document. It has two functions: as a point of focus for witnesses at the scheduled hearing on U.S. adherence to the Berne Convention, April 15, 1986; and, as a point of departure in subsequent consideration of the terms of possible accession to the Berne Convention by all interest groups. The Subcommittee staff hopes that consideration of the options set out in this document will focus the attention of all affected groups more sharply on how the 1976 Copyright Act might be amended to bring our law into conformity with obligations of the Berne Convention, while at the same time maintaining the effective balancing of public and private interests achieved in the 1976 Act. In accordance with Senator Mathias' request, this document consists of a series of legislative proposals, which it is thought would bring certain provisions of our law not now compatible with Berne into accord with Convention obligations. In a number of cases, we have proposed or noted alternatives. Proposals are accompanied by a brief commentary explaining the rationale of the text; and, where arguably a wide variety of options appear to exist for modifying our law to meet Berne requirements, further options than those drafted are discussed in the commentary. We have been guided in this exercise by certain policy considerations and a fundamental aspect of the Convention itself. These considerations should be understood. First, the purpose of United States adherence to the Berne Convention would be to establish on a new and, arguably, more secure footing, the basis of United States international copyright relations. Such a step would constitute a "mid-course correction" away from the relatively general national treatment obligations of the Universal Copyright Convention toward the more detailed regulations of Berne. The feasibility of such a step would depend, therefore, upon our law being in the larger part compatible with the obligations and philosophies of the Berne Convention. We believe that such is the case and have proceeded upon that assumption. Second, and derived from the first consideration, we have proposed what we think are minimal amendments to the law, only where change is clearly required, based upon widely shared understandings of Berne obligations. We have tried to draw a distinction between what is required and what, from the point of view of one or another affected interest, may be only desirable copyright policy. work" Third, the protection of the Berne Convention extends only to "foreign works that have as their "country of origin" a state other than the one where protection is sought. As a general rule, the protection of works in their own country of origin is outside the scope of the Convention; and, theoretically, a lower level or different kind of protection can be accorded works of national origin as long as the minimum obligations of Berne are accorded to works originating in other Union countries. In fact, no state of which we are aware has found it desirable (or politically possible) to create a true dual-level copyright system which accords foreign authors greater rights in important commercial contexts than it accords to nationals. If the United States did so it would be the first. A number of the alternatives we propose for consideration seek to exploit the distinction in treatment between works of foreign and national origin permitted by the Berne Convention. We have done so, however, only in those areas where, in our opinion, the stakes are rather small and neither rightsholders nor the public in general appear to suffer any material injustice from such distinctions in rights or remedies. In certain areas we have foregone proposing different treatment for foreign and domestic works where doing so is possible but highly impractical. Finally, although obvious, it may bear expressly stating that, where we have not discussed changes in legislation, it is our present thinking that no change appears needed to bring our law into conformity with the Berne Convention. Indeed, it is the purpose of this discussion draft to test these assumptions. A. Definitions Amend 17 U.S.C. §101 by adding the following new definitions at the end: • A "work of United States origin" is (1) a work first published in the United States; (2) a work first published simultaneously (that is, within a 30day period) in the U.S. and a country that adheres to any text of the Berne (1886) International Copyright Convention, if that country grants a longer or the same period of protection to the applicable work; (3) a work first published simultaneously (that is, within a 30day period in the U.S. and a country that does not adhere to any version of the Berne (1886) International Copyright Convention; (4) a work whose author is a United States national, if the work is not first or simultaneously published (within a 30-day period) in a country that is a member of the Berne (1886) International Convention. (5) an unpublished work whose author is a national of the United States; or (6) an audiovisual work whose makers have their headquarters or habitual residence in the united States, if the work is unpublished, or the work is neither first nor simultaneously (i.e. within a 30-day period) published in a country that is a member of any text of the Berne (1886) International Copyright Convention. (7) Where the determination of U.S. origin is dependent upon U.S. nationality and the authors of the work have mixed nationalities, the country of origin shall be the U.S. if the quantum of foreign authorship is no more than 10 percent. (8) An architectural work erected in the United States. A "Berne Convention work" is a work that qualifies for protection in the United States under the Berne Convention and is not a work of United States origin. "Architectural works" include two-dimensional and three-dimensional technical drawings, plans, sketches, models, designs and sculptures relative to the art or science of [constructing buildings]. Amend the first sentence of §101's definition of "pictorial, graphic and sculptural works" to read: "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, and models, other than architectural works. Commentary The new definitions are proposed for 17 U.S.C. 101. The term "country of origin," as has already been noted, is a term defined in Art. 5 of the Berne Convention. The Country of origin of a work is important in a number of contexts: 1) determining whether the work is entitled to protection under the Convention; and, 2) determining the applicable term of protection for the work. The purpose of the proposed definitions "work of U.S. origin" and "Berne Convention work" is to facilitate drafting other amendments where distinctions are to be drawn between U.S. and foreign origin works (i.e., the manufacturing clause, use of the copyright notice). The Berne Convention, like the United States copyright law, establishes the subject matter of protection by reference to a work's creative character rather than its medium of protection or any particular technology of fixation. Article 2(1) defines works required to be protected as "every production in the literary, scientific and artistic domain, "whatever may be the mode or form of its expression..." and includes as illustrative examples "works of architecture," "illustrations, maps, plans, sketches," and "three-dimensional works relative to ... architecture...." But the Berne Convention permits a membr country to determine as a matter of domestic legislation "...the extent of the application of [its] laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected." Art. 2(7). Presently, the U.S. copyright law protects architect's blueprints as two-dimensional technical drawings, but does not protect the utilitarian object portrayed nor preclude copyright or constructing the work in threedimensional form. 17 U.S.C. §§101,113. Although greater protection is necessary to comply with Berne, the extent of protection required is unclear. And questions raised about the Convention's mandated scope of protection for architectural works have been resolved differently by member countries. Thus, although France, Japan and the United Kingdom, for example explicitly protect buildings or other structures by statute, the U.K., India and Australia appear to impose a higher standard of protectibility (artistic character or aesthetic merit) on architectural works than on paintings, sculptures and drawings. The draft proposal excepts architectural works from the statutory definition of pictorial, graphic and sculptural works, thus removing architecture from the traditional copyright limitations on utilitarian works. An artistically designed building would clearly be protectible, despite its integrated utility. On the other hand, commonplace, standard or familiar building designs, no matter how functional, would not be entitled to statutory protection. architectural works clarifies that copyright in such works extends only to the And, a separate section limiting exclusive rights in |