The However, formalities may be applied to works originating in the country where At least two protection is claimed in essence to "domestic works." theories of interpreting the progibition on formalities are espoused: WIPO GUIDE'S commentary, the Copyright Office, and many foreign copyright experts who participated in WIPO's June 1978 Experts Meeting consider the Convention means that the prohibition applies where the formality constituts a "condition for the right to exist" [WIPO GUIDE at 33] and that procedural ... or judicially-related requirements are not forbidden. However, the private sector Ad Hoc Working Group concluded that registration and recordation as prerequisites to infringement suits are formalities prohibited by the Berne Convention, except where the country in which protection is claimed is the country of origin. Under the first theory of interpretation, no legislation is necessary to bring United States law into compliance with Berne. (Registration as a mandatory formality for works published without notice of copyright is incompatible with Berne, but the amendments of the notice of copyraight provisions §§401-403, take care of this point.) Under the second theory (the Ad Hoc Group's report), amendatory recordation would be necessary. legislation regarding registration and Obvious options include the following: 1) apply the requirements of recordation and registration as prerequisite to infringement suits only to non-Berne Convention works (i.e., to works of United States origin and nonBerne foreign works); 2) eliminate the requirements of registration and recordation as prerequisite to suit but encourage registration and recordation by retaining the procedural (prima facie effect of certificate) and remedial (statutory damages and attorneys fees) benefits, perhaps with further enhancements. Both theories agree that Berne Convention adherence itself does not require any change in United States law as to the procedural and rememdial benefits of registrtion and recordation. Only their prerequisite to infringment suits is disputed. Mandatory deposit for the benefit of the Library of Congress (section 407) is not incompatible with Berne. Depending upon the statutory change regarding notice of copyright, however, it may be necessary to strike the reference in section 407(a) to notice of copyright as the triggering mechanism for mandatory djeposit and substitute a system based upon publication alone or other criteria of national distribution or availability of a work. On the other hand, if notice of copyright is retained as a mandatory requirement for non-Berne works and there are inducements for Berne works to use a notice, then no change seems necessary in section 407 of the Copyright Act. . No specific proposal has been made with respect to ameliorating any possible conflict between §411 of the 1976 Copyright Act and the Berne Convention. Apart from the fact that a clear conflict has yet to be established, the staffs preparing this document have concluded that any changes in the present system of induced, rather than forced, registration ought to be the subject of separate and careful considertion. this conclusion bear mentioning. The reasons for A registration system has always been a part of our copyright laws and has long assured to any member of the public the realizable right to information about the existence, scope, ownership and exercise of copyright in intellectual materials. In shifting away from a formality based, coercive, registration system to a voluntary system, Congress was careful to provide material inducements for copyright holders to register. Adequate inducements will have to be provided to maintain the completeness and integrity of the registration system should changes to §411 be required for Berne adherence. Further, although §408 establishing the system of deposit for the Library of Congress is compatible with Berne, the practical means by which the national library acquires much needed material is through registrations under 5407 of the law. One of the tests which any proposal for changing the legal incentives for registration must pass is continuing to permit the Library of Congress to collect and preserve our national culture in a comprehensive, timely and economical fashion. U.S. ADHERENCE TO THE BERNE CONVENTION STATEMENT OF THE BEFORE THE SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS OF THE SENATE JUDICIARY COMMITTEE June 16, 1986 INTRODUCTION AND SUMMARY This statement is submitted by the Recording Industry Association of America, Inc. ("RIAA") for inclusion in the hearing record of the Senate Judiciary Committee's Subcommittee on Patents, Copyrights and Trademarks in response to the request by Chairman Mathias for views on the question of U.S. adherence to the Berne Convention for the Protection of Literary and Artistic Works ("the Berne Convention"). RIAA is a trade association of recording companies whose members are responsible for the creation and distribution of approximately 85 percent of the records and prerecorded tapes sold in the United States. RIAA supports the principle of U.S. adherence to the Berne Convention, and commends the Subcommittee for its efforts to ensure that the question of Berne adherence receives the careful legislative scrutiny that it deserves. While it is not clear that Berne adherence would offer the U.S. recording industry any immediate benefit in terms of substantive legal protection for its products, RIAA believes that adherence would serve the long-term interests of record producers and the entire music community in combatting the global crisis of record and tape piracy. On the question of how to bring U.S. law into conformity with Berne, RIAA believes that the following Don't let the implementing legislation become a Christmas tree for special interests; and Don't discriminate against U.S. works. In light of these general principles, RIAA has reviewed the Copyright Office's draft discussion bill to implement Berne. As detailed below, RIAA wishes to record its disagreement with certain provisions of the bill and to express its preference for certain alternative approaches proposed by the Copyright Office. With minor amendments, however, RIAA is confident that the Copyright Office's draft provides a viable basis for proceeding to implement the Berne Convention. This statement is divided into three parts. The first part discusses the advantages of Berne adherence from RIAA's perspective. The second part sets forth the general principles that RIAA believes should govern the implementation of Berne under U.S. law. The third part contains RIAA's detailed comments on certain aspects of the draft discussion bill. |