86.

A

would be to consider whether it does not unreasonably
prejudice the legitimate interest of the author.
Only if such is not the case would it be possible
in certain special cases to introduce a compulsory
license, or to provide for use without payment.
practical example might be photocopying for
various purposes. If it consists of producing a
very large number of copies, it may not be
permitted, as it conflicts with a normal
exploitation of the work. If it implies a rather
large number of copies for use in industrial
undertakings, it may not unreasonably prejudice
the legitimate interests of the author, provided
that, according to national legislation, an
equitable remuneration is paid. If a small number
of copies are made, photocopying may be permitted
without payment, particularly for individual or
scientific use.

The Committee finally adopted the following
wording for paragraph (2) of Article 9: "It shall
be a matter for legislation in the countries of
the Union to permit the reproduction of such works
in certain special cases, provided that such
reproduction does not conflict with a normal

exploitation of the work and does not unreasonably
prejudice the legitimate interest of the author."

The Main Committee recommendation gives deference to legislation in the countries of the Union. In enacting Section 118 of the Copyright Act, Congress recognized the special case of public broadcasting entities and their special needs. See H.R. Rep. No. 94-1476, 94th Cong. 2d Sess., 117 (1976). Because public broadcasting production in the United States is so diverse and decentralized and because the system depends heavily upon the reuse of programs as described above, the application of Section 118 to reproduction rights particularly important. Further, as the Main Committee recommendation suggests, and the Working Group in its alternative finding recognizes, Section 118 is narrowly drawn. Also, compulsory licensing of reproduction rights under Section 118 has a small effect on exploitation by copyright owners of their works; such an effect is well within the example of Main Committee recommendation 85. Finally, as the working Group determined in interpreting Article 11 bis, the compensation scheme under Section 118 is "equitable"; therefore rights of the copyright owner would not be "unreasonably prejudiced" within the meaning of Article 9.

Because the analysis is persuasive that the Section 118 compulsory licensing of reproduction rights is consistent with Article 9 of the Berne Convention, we respectfully request that the Ad Hoc Working Group clarify its analysis to eliminate its alternative view that the public broadcasting compulsory license for reproduction rights does not fit the "special cases" exception of Article 9(2), and specify only that it is consistent with that exception.

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BOOK MANUFACTURERS' INSTITUTE, INC.
June 9, 1986

Charles McC. Mathias, Jr.

United States Senate

Committee on the Judiciary

Washington, DC 20510

Dear Senator Mathias:

You have asked us for our views on U. S. accession to the Berne Convention.

We have no objection to the U. S. becoming a part of the Berne Convention.

We recognize that the manufacturing clause, which we support and wish extended by the adoption of S.1822 as revised, constitutes a "formality" and thus a technical violation of the Berne Convention. But since it is limited to American authors and "preponderantly non-dramatic literary material" in the English language and has many other restrictions to its application, we do not see it as a real impediment to the U. S. accession to the Berne Convention.

Dr. Arpad Bogsch, Executive Director of W.I.P.O., testified before your Subcommittee on May 16, 1985 and said that although the manufacturing clause was an impediment to the U. S. accession to the Berne Convention, he thought a solution could be worked out. As reported in Publishers Weekly, May 31, 1985, (enclosed), he also said the manufacturing clause has only a marginal effect on foreign writers and primarily affects U. S. internal treatment of authors.

On May 22, 1986, Mr. Ralph Oman, Register of Copyrights, testified before the House Judiciary Copyright Subcommittee that he did not foresee real problems if H.R.4696 were enacted into law insofar as accession to the Berne Convention was concerned. He felt the manufacturing clause problem was minor and would probably be acceptable to the Berne Convention. - you know, H.R. 4696 is a companion bill to revised S.1822.

As

agree with Messrs. Oman and Bogsch that if the U. S. Congress and Government wishes to accede to the Berne Convention, the extension of the manufacturing clause as contemplated in revised S.1822 and H.R. 4696 should present no problem.

111 Prospect Street, Stamford, Connecticut 06901 (203) 324-9670

U.S. Should Join Berne Convention,
Witnesses Tell Senate Group

A U.S. Senate subcommittee received
wide-ranging encouragement May 16 to
have the United States become a signa-
tory to the Berne Convention, the pre-
mier international copyright body.

Witnesses told the Senate Judiciary
Copyright Subcommittee that the Unit-
ed States would be in a much stronger
position in its fight against piracy if it
belonged to Berne, which has 76 mem-
ber countries, and also would be in a
better position to influence the handling
of international copyright issues.

The U.S. Copyright Office raised
some questions about conflicts be-
tween the Berne Convention and U.S.
copyright law, but the executive direc-
tor of the World Intellectual Property
Organization, which administers
Berne, said those, differences were mi-
nor and not necessarily in conflict.

Barbara Ringer, former Register of
Copyrights, who has long advocated
U.S. membership in Berne, said Berne
was superior to the 75-member Univer-
sal Copyright Convention, to which the
United States belongs (52 nations be-
long to both conventions). She called
the UCC a low-level convention that
does not afford an opportunity for the
U.S. to discuss unresolved-high-tech-
nology issues and other matters. Berne,
she said, "absolutely offers a better op-
portunity for us to discuss them."

Donald C. Curran, Acting Register of
Copyrights, sounded the only negative
note at the hearing, observing that the
Berne Convention does not require the
formal registration and licensing that
U.S. law requires. And, he said, the

requirement that a work for which a
copyright is being sought be submitted
to the Copyright Office is the source for
the Library of Congress collection,
probably the richest in the world. He
endorsed United States membership in
Berne, however, but said there were
"areas where further study may be
necessary.

་་

Arpad Bogsch, WIPO director, said
that the desire of the Berne members
for the United States to join was so
great that he did not foresee any prob-
lems with U.S. copyright laws. "I think
you can count on. a certain amount of
flexibility," he said.

Bogsch did mention, however, the
manufacturing_clause that prohibits
copyright protection for American-
written books printed outside the Unit-
ed States. He noted that the clause was
due to expire next year and that efforts
already were underway in Congress to
have the clause renewed.

Bogsch said if that happened, "I can
see a solution, if necessary, in some ca-
ses." He said the clause has only a mar-
ginal effect on foreign writers and sug-
gested that the Berne Convention
would not be interested in U.S. internal
treatment of its authors..

He noted that when the U.S. decided
last year to drop, out of UNESCO, the
United Nations body that handles
copyright issues, the country lost its
only direct influence in international
copyright matters. Its influence at pres-
ent is limited to "back-door" influence,
he said.

C. Michael Hathaway, deputy gener

al counsel for the U.S. Trade Represen
tative, also urged U.S. membership in
Berne as a key factor in fighting piracy.
The U.S. government already has run
into trouble in trying to negotiate copy-
right issues with foreign governments,
some of them members of Berne, he
pointed out.

Hathaway said, "Those govern-
ments would have some grounds for
questioning the sincerity of U.S. inter-
ests in 'adequate and effective' protec-
tion for copyrighted works, when we
ourselves have not chosen to adhere to
the Berne Convention. The issues we
would like to focus on in the discus-
sions could be confused if the foreign
governments raise the reasons the U.S.
has declined to adhere to the Berne
Convention."

The same questions already arise in
negotiations with countries that belong
to neither Berne nor the UCC, Hatha-
way said. Many of the countries ac-
cused of piracy belong to neither.
"Those officials often ask which con-
vention is preferable or to which the
United States belongs," he said.

"Those are difficult questions to an-
swer when the United States is a signa-
tory only to one of the conventions. In
short, our negotiating position would
be stronger if we could outline the pro-
visions of each convention and indicate
that we were prepared to adhere to
both."

Donald Guido, Acting Patents and
Trademarks Commissioner, said the
Cabinet Council on Commerce and
Trade is "unanimously convinced that
adherence to the Berne Convention is
extremely important to the future role
of the United States in the worldwide
information economy.

H.F.

Thank you for requesting our comments for the hearing record of the Subcommittee on Patents, Copyrights and Trademarks regarding advantages or disadvantages of U.S. adherence to the Berne Convention.

While the NAB Copyright Committee is aware of the issues related to U.S. adherence to the Berne Convention, neither the Copyright Committee nor the NAB Board of Directors have acted either to endorse or refuse to endorse U.S. adherence to the Berne Convention.

Nevertheless, NAB is actively engaged in efforts to assist its membership in negotiating copyright protection and compensation in several international settings. In some instances, foreign governments have raised the issue of U.S. non-adherence to the Berne Convention as an obstacle to protection of U.S. copyrights and compensation for U.S. copyright holders.

Accordingly, NAB shares many of the concerns of its network members, some of whom have already testified before the Subcommittee (see e.g. testimony of CBS on April 15, 1986). Broadcasting are, by definition, both users of copyrighted works and owners of copyrighted works. Where the standards of copyright protection are low in foreign countries, international copyright protection would, indeed, be useful.

NAB has a continuing interest in this issue, and will keep you informed of any official NAB position on the issue.

This letter is in response to your letter of May 29, concerning the United States adherence to the Berne Convention.

Let me say at the outset that I do not see any advantage to the participation of the United States in the Berne Convention, but I do see some serious disadvantages. My objection is based on the difference in the theoretical foundations of American copyright law and the copyright law of most countries which adhere to the Berne Convention. In brief, the difference is this: the theory of American copyright law is that it is a statutory monopoly granted in the public interest; the theory of copyright law under the Berne Convention is that copyright is a natural law right of the author.

Adherence to the Berne Convention by the United States would inevitably lead in this country to a greater acceptance of the natural law theory of copyright. Consequently, the result will be to sever copyright from its constitutional moorings and lead to an enhancement of the copyright monopoly. One of the problems thereby created may be an incursion into the area of free speech, guaranteed by the First Amendment. (I am particularly concerned about the free speech aspects of copyright as I have just completed an article dealing with the problem, which has not yet been published, but which I shall be happy to make available to your staff if you so desire.")

Copyright law must serve the interest of three groups--publishers (or entrepreneurs), authors, and the public. For all its faults, American copyright law has done a remarkable job in achieving the proper balance between the interests of these three groups. But it has done so because of its constitutional basis, which, I venture to guess, is unique. The formalities of American copyright (notice and registration) have played a major role in achieving this balance. Berne Convention disdains such formalities, and the participation of the United States in the convention will almost surely lead to the

The