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PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY
WE ARE ABOUT TO TAKE UP A QUESTION THAT HAS REALLY BEEN
BEFORE US FOR NEARLY 100 YEARS, AND YET HAS NEVER BEEN MORE
THE BERNE CONVENTION WAS FORMULATED IN 1886 AND IS THE
WORLD'S OLDEST MULTILATERAL COPYRIGHT CONVENTION.
STATES HAS NOT RATIFIED BERNE, PRINCIPALLY BECAUSE DIFFERENCES
WITH OUR OWN DOMESTIC COPYRIGHT LAW HAVE ALWAYS SEEMED TOO WIDE
TO BRIDGE AND TOO
IMPORTANT TO ELIMINATE BY CONFORMING TO THIS
INTERNATIONAL MODEL, EVEN AS
IT HAS EVOLVED OVER TIME.
BUT IF THE BERNE CONVENTION HAS CHANGED SINCE 1886,
WORLD AROUND IT HAS CHANGED MUCH MORE.
AND ONE OF THE REASONS
IS SO IMPORTANT IS THE RENEWED FOCUS IN THE
UNITED STATES AND ELSEWHERE ON PROTECTING CREATIVITY AS THE MOST
IN OUR GLOBAL COMMUNITY.
A HUNDRED YEARS AGO, THE TARGET OF COPYRIGHT LAW WAS THE
PROTECTION OF LITERARY WORKS IN A WORLD WHERE THE FACT OF
AUTHORSHIP AND THE ACT OF
INFRINGEMENT WERE BOTH WELL-DEFINED.
TODAY TRANSPORTATION AND TECHNOLOGY HAVE RAISED PIRACY TO A
HIGH ART AT THE VERY MOMENT
IN HISTORY WHEN AMERICA'S ECONOMIC
FUTURE WILL SURELY DEPEND MORE AND MORE ON CREATIVE IMAGINATION,
AND LESS AND LESS ON THE PRODUCTION OF HEAVY
THE EXPORT VALUE OF AMERICAN MOTION PICTURES NOW EXCEEDS THE
VALUE OF OUR STEEL EXPORTS, AND WHILE LOW-COST CLOTHING AND
HIGH-TECHNOLOGY PRODUCTS CAN BE PRODUCED MORE CHEAPLY IN THE FAR
EAST, WE STILL LEAD THE WORLD
IN FASHIONING NEW AND ATTRACTIVE
STYLES AND THE VERY LATEST IN STATE-OF-THE-ART TECHNOLOGY.
IF THE WORLD MOVES TOWARD GENERAL
INDIFFERENCE ABOUT THE
PROTECTION OF INNOVATION AND CREATIVITY, THE UNITED STATES WILL
STAND TO LOSE A GREAT DEAL.
AND WHILE THE BERNE CONVENTION SPEAKS ONLY OF COPYRIGHT
PROTECTION, IT IS THE OLDEST INSTRUMENT OF ITS KIND IN THE WORLD
INDICATOR OF THE WILLINGNESS OF THE INTERNATIONAL
COMMUNITY TO TAKE SERIOUSLY THE PROBLEM OF PROTECTING CREATIVITY.
SOME OF THE HISTORIC OBJECTIONS TO ADHERENCE TO THE BERNE
CONVENTION WERE BASED ON A PERCEPTION THAT IT MAY HAVE WEIGHED
THE INTERESTS OF COPYRIGHT OWNERS TOO HEAVILY AND THE INTERESTS
OF USERS AND THE PUBLIC TOO LIGHTLY.
THE NEED TO BALANCE PROPRIETARY INTERESTS ON THE ONE HAND
AND CONSUMER INTERESTS ON THE OTHER IS A FUNDAMENTAL ONE, AND THE
VIRTUAL REVOLUTION IN NEW TECHNOLOGY HAS HEIGHTENED THE NEED FOR
PUBLIC CONFIDENCE IN THE FAIRNESS OF THAT BALANCING.
THE COMPUTER CHIP PROTECTION LEGISLATION WHICH WE ADOPTED
LAST YEAR IS A VERY
GOOD EXAMPLE OF THE PROBLEM.
TECHNOLOGY THAT HAS FOREVER CHANGED THE WAY WE STORE AND TRANSMIT
INFORMATION, THE WAY WE DESIGN TOOLS, THE WAY WE ANALYZE DATA
FROM OUTER SPACE, AND THE WAY WE CONDUCT NEARLY ALL OF OUR
YET BEFORE LAST YEAR NO ONE COULD SAY FOR CERTAIN WHETHER
THIS REVOLUTIONARY DEVICE FELL WITHIN THE AMBIT OF COPYRIGHT OR
WAS THE COMPUTER CHIP A LITERARY WORK OR AN
IN THE END WE HAD TO FASHION A NEW REGIME OF PROTECTION THAT
REWARDED INNOVATION BUT DID NOT NEGLECT THE INTERESTS OF BOTH
THOSE WHO NEEDED ACCESS TO
MOST MODERN IMPROVEMENTS IN CHIP
TECHNOLOGY AND THOSE WHO WOULD FACE UNDUE RISKS IF THEY BROUGHT
SIMILAR, BUT NON-INFRINGING TECHNOLOGY INTO THE MARKETPLACE.
WE HAVEN'T SEEN THE END OF PROPRIETARY RIGHTS PROBLEMS
GENERATED BY NEW TECHNOLOGY.
WE'VE HARDLY SEEN THE BEGINNING.
AND SO WE WILL BEGIN OUR VIEW OF THE BERNE CONVENTION WITH THE
CONVICTION THAT THE INTERNATIONAL COMMUNITY HAS A DEEP AND REAL
AS NEVER BEFORE
IN A REGIME OF COPYRIGHT LAW WITH
SIGNIFICANT ELEMENTS OF UNIFORMITY, BUT THAT THE UNITED STATES
HAS A NEED
NO LESS IMPORTANT
TO BALANCE THE RIGHTS OF
CREATORS WITH THOSE OF CONSUMERS.
THERE ARE SOME SPECIFIC ISSUES GERMANE TO THE TEXT OF THE
BERNE CONVENTION THAT WE OUGHT TO CONSIDER.
OUR PRESENT COPYRIGHT LAW REQUIRES NOTICE THAT THE WORK IS
UNDER COPYRIGHT, AND EVEN AFTER THE 1976 REWRITE OF OUR LAW, THIS
INCONSISTENT WITH THE BERNE CONVENTION
PROHIBITION AGAINST SUCH FORMALITIES.
THE REQUIREMENT THAT A WORK BE REGISTERED WITH THE COPYRIGHT
OFFICE PRIOR TO BRINGING AN INFRINGEMENT SUIT IS VERY LIKELY
PROHIBITED BY THE CONVENTION.
A THIRD REQUIREMENT IN OUR LAW THAT IS INCONSISTENT WITH
BERNE IS THE SO-CALLED MANUFACTURING CLAUSE
THAT CERTAIN WORKS PRODUCED BY AMERICANS BE FIRST PRINTED
WHEN THIS CLAUSE WAS DUE TO EXPIRE IN 1982 we
LEARNED THAT THERE WERE MANY WHO CONSIDERED THIS PROVISION
ESSENTIAL TO THE HEALTH OF THE AMERICAN BOOK PRINTING INDUSTRY.
FINALLY, OUR LAW CONTAINS A REQUIREMENT THAT COPYRIGHT
OWNERS DEPOSIT TWO COPIES OF THEIR WORK WITH THE LIBRARY OF
THIS DEPOSIT REQUIREMENT
IS CRITICAL TO THE MAINTENANCE BY
THE LIBRARY OF CONGRESS OF A COMPLETE COLLECTION OF ALL
ANY CHANGE IN OUR LAW THAT WOULD THREATEN
THIS COMPLETENESS WOULD FRANKLY HAVE TO HAVE VERY STRONG
THE UNITED STATES HAS ADHERED TO THE UNIFORM COPYRIGHT
CONVENTION, ANOTHER IMPORTANT MULTILATERAL COPYRIGHT TREATY,
WHICH ALLOWS ALL FOUR OF THESE SPECIAL PROVISIONS
IN THE UNITED
STATES COPYRIGHT LAW.
AND WHAT WE MUST NOW CONSIDER IS WHETHER THE INTERESTS OF
AMERICAN PARTICIPATION IN BERNE OUTWEIGH THE ONGOING NEEDS OF
U. S. COPYRIGHT OWNERS AND CONSUMERS UNDER THE CURRENT AMERICAN
LAW, AS PERMITTED BY THE UCC.
THE COMMITTEE IS FORTUNATE TO BEGIN THESE HEARINGS WITH THE
TESTIMONY OF DR. ARPAD BOGSCH, THE DIRECTOR GENERAL OF THE WORLD
WITH NO ONE MORE KNOWLEDGEABLE THAN DR. BOGSCH ABOUT THE
POTENTIAL BENEFITS WHICH CAN RESULT FROM THE U. S. JOINING THE
BERNE UNION AS WELL AS THE MANY LEGAL OBSTACLES WE WOULD FACE IF
WE CHOSE TO MOVE IN THAT DIRECTION.
I AM LOOKING FORWARD TO HIS
Senator MATHIAS. Thank you very much, Senator Leahy. You speak with becoming modesty, as befits a Vermonter. [Laughter.]
Senator LEAHY. I am not sure—I want to read that in the record a couple of times slaughter) before I find out whether this Yankee has just been pilloried or not on that one.
Senator MATHIAS. No; it was not said in jest at all. I know that Winston Churchill once heard Clement Atley praised as a modest man and said yes, he had a great deal to be modest about. [Laughter.)
But I was thinking instead of those sterling Yankee virtues of frugality and humility and industry.
STATEMENT OF DR. ARPAD BOGSCH, DIRECTOR GENERAL,
WORLD INTELLECTUAL PROPERTY ORGANIZATION, GENEVA, SWITZERLAND
Dr. BOGSCH. Mr. Chairman, Senator Mathias, Senator Leahy, I thank you most sincerely for having invited me to testify before your subcommittee.
No instance in the United States of America is more important to the World Intellectual Property Organization than your subcommittee since it is here, essentially, that the treaty-making efforts of the World Intellectual Property Organization must receive approval. It is your approval that makes the fruits of those efforts applicable in that country in the world which produces, and exports, the highest number of inventions, trademarks, and literary and artistic works eligible for intellectual property protection.
In this testimony, I shall try to answer the question why the United States of America should become a party to the Berne Convention for the Protection of Literary and Artistic Works. Why should it become a party to the Berne Convention when it already is a party to another multilateral treaty in the field of copyright, the Universal Copyright Convention?
These questions are all the more justified since the two multilateral treaties have, with the exception of the United States of America and the Soviet Union that are outside the Berne Convention, almost the same membership and since the basic principle is the same in both conventions; namely, that each contracting country must grant the same protection to the nationals of the other contracting countries as it does, under its national law, to its own nationals.
But there is a difference, and a very important difference, between the two conventions. Although each convention contains rules on what the minimum protection to be granted by each country is, the level of that minimum is much higher in the Berne Convention than what it is in the Universal Copyright Convention. For example, the Berne Convention requires the recognition of rights in the case of broadcasting and the right of making motion pictures of published works. These rights are not part of the minimum under the Universal Copyright Convention. This is why, for example, the Soviet Union, a country party to the Universal Copyright Convention but not to the Berne Convention, has a clear right not to grant such rights to United States works.
Another difference between the two conventions is that whereas the Universal Copyright Convention is administered by Unesco, the Berne Convention is administered by the World Intellectual Property Organization.
Now, I shall try to answer the question I started out with.
The main reason for which the United States of America should, in my opinion, decide to become a member of the Berne Convention is that, as a member of that convention, the United States will be able to exercise leadership in the world for a strong, high-level copyright protection. It will be able to exercise leadership that such a strong protection continue and be developed, where necessary, particularly in the event of changing technological circumstances.
Copyright is for the most part in private hands. It is private property par excellence. In every country, much of the works protected by copyright are of foreign origin. In many countries, private property, particularly if belonging to foreigners, is not viewed with much sympathy by governments. Firm political will and a strong overall position are needed to preserve the respective copyright.
The Berne Convention is a coalition of states determined to have such respect for copyright. But the strongest potential member of such a coalition, the United States of America, is not a member of the coalition. Thus, the result that one can expect from U.S. mem