NOTE-The reports contained herein are not to be deemed to represent the opinion or views of the American Bar Association, or of its Section of Patent, Trademark and Copyright Law, unless and until adopted pursuant to the Bylaws of the Association and the Section. 148 302 INTERNATIONAL COPYRIGHT TREATIES AND LAWS COMMITTEE NO. 302 David Goldberg, Chairman INTERNATIONAL COPYRIGHT TREATIES AND LAWS Scope of Committee: Copyright problems arising out of differences in the laws of various countries, including: (1) the rights of United States citizens to obtain copyright protection in other countries and the rights of foreign authors to obtain copyright protection in the United States; (2) the laws of foreign countries and of the United States relative to the rights of exportation and importation of copyrighted works; and (3) the international conventions and treaties involving copyright. In coordination with the Committee on Cooperation with Other Bar Groups, this committee cooperates with the A.B.A. Section of International Law. SUBCOMMITTEE A J. MICHael Cleary, Subcommittee Chairman Subject 1. UNITED STATES ACCESSION TO THE BERNE COPYRIGHT CONVENTION. NO PROPOSED RESOLUTION. Past Action. Committee 302 has been studying the Berne Convention and possible United States accession to same since the passage of the Copyright Act of 1976. The 1979 report discussed several issues surrounding United States accession to Berne. In 1980, the Committee proposed a resolution recommending abolition of United States copyright notice requirements with a view towards accession to the Berne Convention. Committee 302's "notice" resolution was combined for consideration with a similar resolution by Committee 301 and was eventually approved by the Section at the 1980 Annual Meeting. (1980 SP83-R301-1). Discussion. In 1981, the Committee once again considered U.S. accession to Berne. Generally, the Committee 302 studies have focused on the advantages of Berne adherence, such as bringing the United States into the world copyright community and dispensing with unnecessary and “archaic” formalities. Some members of Committee 302, as well as other prominent members of the copyright community, have noted a lack of attention to a number of pitfalls or negative aspects to Berne adherence. The task of this Subcommittee was to identify and attempt to "catalog" some of the principal concerns or disadvantages of Berne adherence, without attempting to resolve the problems raised, leaving that aspect for future committees. It should be noted that the prior studies have not involved a full discussion or "cataloging" of the positive aspects, which might be a fruitful topic for next year's committee. Moreover, the Subcommittee is not taking a position on Berne adherence, nor a position as to the validity of the listed negative aspects. The Subcommittee also felt that it would be helpful to present to the entire Section, as part of this Subcommittee report, a bibliography of books and articles which deal with the Berne Convention, U.S. accession, moral rights and related questions. The following list represents the principal concerns and disadvantages reviewed by the Subcommittee: FORMALITIES 1. Elimination of formalities may make it more difficult to perfect and enforce copyright interests, as a purely voluntary copyright registration and document recordation system will not encourage the establishment of an adequate public record of copyright claims, and will eventually cause a loss of records valuable for their historical as well as legal significance. 302 INTERNATIONAL COPYRIGHT TREATIES AND LAWS 149 2. The non-formality requirements of Berne may require elimination of the compulsory licenses which are a central feature of contemporary U.S. copyright law, such as cable copyright licenses, jukebox licenses and mechanical licenses for sound recordings. MISPERCEIVED BENEFITS OF BERNE 3. Under Berne, a work still protected in its country of origin must be protected in all other Berne countries. Accordingly, U.S. works which are still protected in this country would automatically become protected in Berne countries upon U.S. adherence even if the work was previously in the public domain in a Berne country or countries. Conversely, U.S. adherence would automatically and retroactively revive many copyrights in foreign works which had been in the public domain in this country, creating numerous problems for those who had previously been dealing legitimately with "public domain" properties. (A new member of the Berne Convention may be flexible in providing retroactive protection for previously public domain works, but this will require action by Congress. See point 7, infra.) 4. One objective of Berne adherence is to produce uniformity in international copyright treatment. However, adherence to Berne would not necessarily lead to uniform treatment of all U.S. works in view of the "crazy quilt" pattern of protection resulting from adherence of different nations to different revisions (or portions of different revisions) of the Berne Union. For example, under Article 32, paragraph 1 of the Paris Act of 1971, relations between countries already members of Berne are governed by the latest text which has been accepted by both. Under Article 32, paragraph 2, a new member of Berne is obligated to apply the provisions of the Paris Act of 1971, while older members are entitled to apply only the provisions of the most recent act by which such other country is bound. The various versions and revisions of Berne are as follows: September 9, 1886: Berne Convention (entry into force on December 5, 1887). May 4, 1896: Additional Act of Paris (entry into force on December 8, 1897). November 13, 1908: Berlin Revision (entry into force on September 9, 1910). March 20, 1914: Additional Protocol of Berne (entry into force on April 20, 1915). June 2, 1928: Rome Revision (entry into force on August 1, 1931). June 26, 1948: Brussels Revision (entry into force on August 1, 1951). July 14, 1967: Stockholm Revision (no entry into force of substantive provisions, but revised and incorporated in following revision; entry into force of administrative provisions in 1970). July 24, 1971: Paris Revision (entry into force on October 10, 1974). MORAL RIGHTS 5. The general language in which moral rights is expressed is ambiguous. Such terms as “honor and reputation of the author” are difficult to define and may lead to confusion as to the scope of rights protected. 6. Injection of the doctrine of moral rights into the U.S. copyright law may pose an unnecessary and expensive burden on copyright users who may never be certain what types of uses, even if licensed, constitute a moral rights violation. The doctrine of the inalienability of moral rights may be troublesome to users who do substantial adaptation of literary or musical works for different media. In this connection, the argument has also been made that, while foreign countries which extend moral rights have not experienced an undue amount of litigation on these issues, foreign authors may not be as litigious as U.S. citizens. 150 302 INTERNATIONAL COPYRIGHT TREATIES AND LAWS POLITICAL CONCERNS 7. Adherence to Berne would require revision of the U.S. copyright statute. Unlike the Universal Copyright Convention, Berne is "self-executing" so that once the United States accedes (with the advice and consent of the Senate), the Convention would be the supreme law of the land, Missouri v. Holland, 252 U.S. 416 (1920), and all conflicting provisions of domestic legislation would be superseded. It would also be necessary to legislate conforming terms of protection. For example, the United States now protects works made for hire for 75 years following publication, but Berne requires a term of 50 years following the author's death except in special cases. Additionally, "moral rights" legislation, if such be found necessary, should provide that moral rights vest in an employer, whether or not a legal entity, and that the rights continue in such person or entity until the expiration of the economic rights. 8. The Berne Convention, like the Paris Convention, is becoming a tool of international activism tending to politicise previously non-political, intellectual property issues. Moreover, the Berne Union may be threatened by non-political differences of opinion over the scope, means and enforcement of copyright interests in a rapidly changing technological environment. SUFFICIENT PROTECTION ALREADY AVAILABLE 9. There is no practical advantage to U.S. adherence to Beme since we can obtain all the advantages of Berne, and none of its obligations, through a simultaneous publication in a Berne country, particularly since the coming into force of the Paris Act of 1971 which removed serious doubts about whether U.S. works could obtain such Berne protection through simultaneous publication. 10. The Universal Copyright Convention provides sufficient minimum standards to protect U.S. works internationally. Most major countries are already UCC members. BIBLIOGRAPHY ON READINGS ON THE BERNE CONVENTION/MORAL RIGHTS While many of the readings relate directly to the moral rights issues, others are of a more general nature and may be helpful in evaluating the benefits and consequences of U.S. adherence to the Berne Union. L. Ladas, The International Protection of Literary and Artistic Property 575 (1938). J. Whicher, The Creative Arts and the Judicial Process 8-32 (1965). Bodenhausen, United States Copyright Protection and the Berne Convention, 13 Bull. Cr. Soc. 215 (1966). DaSilva, Droit Moral and the Amoral Copyright: A comparison of artists'·rights in France and the United States, 28 Bull. Cr. Soc. 1-58 (1980). De Sanctis, The International Copyright Conventions, 1978 Copyright (WIPO Journal) 254. Diamond, Legal Protection for the "Moral Rights, of Authors and Other Creators," 68 Trademark Rep. 244-81 (1978). Fishman, Artist's Moral Right in Art Works, N.Y.L.J. 1-2, (December 21, 1977). Fishman, The Emergence of Art Law, 26 Cleveland State L. Rev. 481, 490-92 (1977). Gabay, United States Copyright System and the Berne Convention, 26 Bull. Cr. Soc. 202-20 (1979). Katz, The Doctrine of Moral Rights and American Copyright Law-A Proposal, 24 So. Cal. L. Rev. 375 (1951). Katz, Copyright Premption Under the Copyright Act of 1976; The Case of Droit de Suite, 47 Geo. Wash. L. Rev. 200 (1978). |