ment (Ministry of Culture and Communications) and a performing rights society (SACEM). The French public and private representatives all generally expressed support for U.S. adherence to the Berne Union. On March 9, 1988, the Subcommittee on Courts, Civil Liberties and the Administration of Justice marked-up H.R. 1623. After general debate, the subcommittee-a quorum of Members being present-approved a substitute amendment. Conceptually, the amendment-offered by Chairman Kastenmeier-adopted a minimalist approach: that is, the adherence of the United States to the Berne Convention can be accomplished with only minimal changes to United States law. The amendment eliminated sections in H.R. 1623 relating to moral rights and architectural works. It was premised on a finding that current American law is adequate on those subjects to allow the United States to join the Berne Convention. By removing all references to moral rights in the bill, the amendment leaves current law exactly where it is and allows it to develop-or not develop-in exactly the same way it would have developed or not developed-had the United States not adhered to Berne. As to architectural works, the amendment was premised on the conclusion that the United States should not move precipitously on an issue that touches very fundamental concepts, long drawn in law, with respect to the non-protection under copyright of creativity more appropriate to design or patent protection. In this regard, the amendment merely clarified that architectural plans are already protected under the general category of pictorial, graphic and sculptural works. Last, the amendment made it abundantly clear in the bill's findings and declarations that Berne is not self-executing. After the vote on the substitute amendment, the subcommittee voted to report the measure to the full Committee in the form of a clean bill. On March 28, 1988, the clean bill-H.R. 4262-was introduced by Subcommittee Chairman Kastenmeier, with twelve cosponsors: Mr. Moorhead, Mr. Synar, Mrs. Schroeder, Mr. Crockett, Mr. Berman, Mr. Bryant, Mr. Cardin, Mr. Fish, Mr. DeWine, Mr. Coble, and Mr. Slaughter (of Virginia). On April 28, 1988, the Committee considered H.R. 4262. After general debate, two amendments were offered by Chairman Kastenmeier. The first confirmed and clarified the provisions of the bill relating to moral rights and self-execution of the treaty. The second made technical changes to the sections of the bill relating to coin-operated phonorecords (jukeboxes). Both amendments were adopted by voice vote. Then, with a quorum of Members being present, H.R. 4262 was favorably reported by voice vote, no objections being heard. III. BACKGROUND This background statement places U.S. adherence to the Berne Convention, and the proposed implementing legislation, in the larger context of three subject matter areas: first, the Berne Convention in international copyright law; second, the Berne Conven tion and international trade; and, third, the underlying philosophy of the implementing legislation. A. THE BERNE CONVENTION IN INTERNATIONAL COPYRIGHT In order to appreciate the importance of U.S. adherence to the Berne Convention, it is useful to start with the Convention's history and successive revisions, its role in international copyright, administration of the Convention by the World Intellectual Property Organization, the relationship of Berne to the Universal Copyright Convention, and Berne and developing countries. The Berne Convention is the oldest and most respected international copyright treaty. In 1886, the Convention was concluded at Berne, Switzerland and the Berne Union came into being. Since then, the Convention has been successively completed and revised seven times: at Paris (1896), Berlin (1908), Berne (1914), Rome (1928), Brussels (1948), Stockholm (1967), and most recently, at Paris (1971). From an initial membership of eight states, the Union now boasts seventyseven members, adhering to one or more of the principal Acts of the Union. The Berne Union includes nations from all regions of the globe, at all levels of development. In the Western Hemisphere, Canada and 10 Latin American Republics adhere to Berne; in Europe, virtually every major state in Western and Eastern Europe adheres. Twenty-four states of Africa and 10 from Asia and the Pacific adhere. Membership includes highly industrialized nations such as Japan, Canada and France; industrializing countries such as India, Brazil and Mexico and developing countries such as Benin and Sri Lanka. Major states not members of the Berne Union include the Soviet Union, China and the United States of America. 1. History of the Convention The Berne Convention of 1886 culminated over 25 years of study and conferences which were undertaken by representatives of authors and artists, journalists, publishers, academics and governments, acting to replace the growing patchwork of European bilateral copyright arrangements with a simple, multilateral treaty respecting authors rights. These bilateral agreements often imposed a variety of conditions and restrictions upon rights as well as a variety of formalities which had to be complied with as conditions of protection. In 1878, during a Literary Congress at Paris, the International Literary and Artistic Association was founded. In 1882, the Association adopted a resolution stating "that the need for the protection of intellectual property was the same in all countries, and that complete satisfaction of this need could only be obtained by the constitution of a 'union for literary property' Between 1884 and 1886, the Swiss Federal Council convened three sessions of a diplomatic conference to develop an internation * * *" 11 11 S. LADAS, 3 THE INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROPERTY 75 (1938). al convention for the protection of literary and artistic works. In September, 1886 the Berne Convention emerged. The original Convention was intended to promote five objectives: (1) the development of copyright laws in favor of authors in all civilized countries; (2) the elimination over time of basing rights upon reciprocity; (3) the end of discrimination in rights between domestric and foreign authors in all countries; (4) the abolition of formalities for the recognition and protection of copyright in foreign works; and, (5) ultimately, the promotion of uniform international legislation for the protection of literary and artistic works. The first Berne Convention was a simple document in which two cardinal principles were established, both of continuing vitality today: a. The Union: the states adhering to the Convention organized themselves into a Union for the protection of the rights of authors in their literary and artistic works. In forming the Union, the original members contemplated an essentially political as well as legal undertaking: that adherents to the Convention would function as a cooperative unit which would continue in existence regardless of future accessions or withdrawals from the Convention itself. b. The Rule of National Treatment: one of the cornerstones of international copyright is the rule, first recognized for copyright in the Berne Convention, that authors should enjoy in other countries the same protection for their works as those countries accord their own authors. During the century of its existence, the Convention has been revised five times to meet changed conditions and technological development affecting authors' rights. Successive texts have generally improved and extended rights accorded authors and copyright proprietors; and, in 1967, the Berne Union confronted the special challenges to copyright policy posed by the emergence of numerous developing countries on the world scene. 2. Successive Revisions of the Berne Convention a. 1908 Berlin Act. The principal achievement of the Berlin Revision Conference was the prohibition of formalities as a condition of the enjoyment and exercise of rights under the Convention. The minimum duration of protection was set at the life of the author and fifty years post mortem, but made subject to exceptions_for each country so as to make it less than a mandatory rule. The Convention further expanded the minimum subject matter of copyright under the Convention, including photographs. Moreover, the Berlin Revision recognized the exclusive rights of composers of musical works to authorize the adaptation of these works and gave explicit protection to the authors of cinematographic works. b. 1928 Rome Act. This revision was the first to recognize expressly the "moral rights" of authors: the right to claim authorship of a work and the right to object to modifications of the work which prejudiced the honor or reputation of the author. The Rome revision specifically recognized the right to authorize broadcasting of works, leaving details to be elaborated by national legislation. c. 1948 Brussels Act. This revision established the term of protection of life of the author and fifty years post mortem as mandatory. It added improvements in copyright protection including recognition of the right of public recitation; rules governing mutual recognition of optional "resale royalty" laws (so-called "droit de suite"); extension of the broadcasting article to secondary transmissions, including by wire; and, express recognition of cinematographic works and works produced by processes analogous to cinematography as distinct subjects of copyright protection. d. 1967 Stockholm Act. For the first time, the implicit right of reproduction was expressly established in the Convention and special rules governing exceptions to that right were also included. Significant new rules relating to reconciling different national rules of authorship and ownership of motion pictures, defining the "nationality" of films for Convention purposes, were added at this revision. Protection was extended to include authors having habitual residence in a Union country, regardless of their citizenship. Finally, this revision established a "Protocol Regarding Developing Countries," which would have allowed developing countries broadly to limit rights of translation and reproduction. The 1967 Stockholm Act has not and will not come into force. It has effectively been superseded by the 1971 Paris Act. e. 1971 Paris Act. The 1971 Paris Act of Berne-the only Act now open to accession-is essentially the 1967 Stockholm Act with significant revisions made to the Protocol Regarding Developing Countries. The thrust of these revisions will be discussed in the context of relations with developing countries. 12 3. The Administration of the Convention The Berne Convention is administered by the World Intellectual Property Organization (W.I.P.O.), an intergovernmental organization with headquarters located in Geneva, Switzerland. The W.I.P.O. is a specialized agency within the United Nations system of organizations. It is responsible for the administration of various Unions, each rooted in a multilateral treaty and dealing with aspects of intellectual property. The twin objectives of the W.I.P.O. are to promote the protection of intellectual property throughout the world and to ensure administrative cooperation among Union states. As regards copyright law, the W.I.P.O. plays a central role in promoting the vitality of the Berne Union. 13 The Convention itself establishes that the W.I.P.O. serves as the International Bureau of the Union.14 It is charged with special functions including publication of information concerning protection of copyright and providing expert services to countries of the Union on copyright matters. Its most important functions in respect of copyright, however, are twofold: first, to conduct studies and provide services "designed to facilitate the protection of copyright" 15; and second, the specific 12 For further information about the history of the Berne Convention, see statement of Ralph Oman, Register of Copyrights, House Hearings, supra note 9, June 17, 1987. 13 The W.I.P.O. also administers The International Union for the Protection of Industrial Property. Patents for inventions and marks for goods and services are the most important subject matters of industrial property. In addition, the W.I.P.O. is currently engaged in the drafting of an international treaty for the protection of integrated circuits (semiconductor chip products). 14 Berne Convention Art. 24. 15 Id. at Art. 24 (5). responsibilities of the Director General of the W.I.P.O. as the chief executive of the Berne Union and its representative. Within this framework, the Berne Union through the W.I.P.O. conducts an ambitious program examining the relevance of the Convention to new media of creation, exploitation and consumption of copyrighted works. During the past decade, the W.I.P.O. has facilitated examination within the Union of the copyright aspects of cable television, satellite transmissions, including direct broadcast satellites, the rental of copies of protected works, private copying, and access to protected works by developing countries. In the recent past, the W.I.P.O. has organized a comprehensive survey of contemporary challenges to the balanced protection of copyright and consumer interests confronting the major categories of works protected under copyright. This endeavor, spanning some seven meetings, has permitted states party to the Berne Convention (in addition to the Universal Copyright Convention [UCC]) to assess the full range of changes in market environments confronting the effective exercise and enjoyment of copyright. 4. The Relationship Between the Berne Convention and the Universal Copyright Convention By the close of the Second World War, it had become apparent that the entry of the United States and a number of other American Republics into the Berne Convention would require major amendments to national copyright laws and, therefore, was not likely in the near future. In order to bring these states of the Western Hemisphere into simplified multilateral copyright relations with the rest of the world, particularly Berne members, a project to develop a new multilateral instrument was launched. Under the auspices of UNESCO, with the key objective being rapidly to bring the U.S.A. into multilateral copyright arrangements, the UCC was concluded in 1952. The United States ratified the Convention and became a member in 1955. In 1971, the UCC was revised simultaneously with the Berne Convention in order to permit the introduction in the Convention of provisions identical to the developing country concessions agreed upon for the Berne Convention. The UCC now has 80 adherents and provides a simple avenue for protection on the basis of national treatment, with few minimum treaty requirements relating to the level of protection. Unlike the Berne Convention, the UCC-both the 1952 and 1971 texts-was drafted so as to require as few changes in United States internal law as possible before adherence. Thus, in certain regards-minimum terms of protection, posture on formalities and definitions of significant terms such as "publication" and "copies" of works—the UCC reflects the law in effect in the United States prior to 1978. The UCC was created with the full assistance of the founding members of the Berne Union. One of the signal and crucial achievements in developing the UCC was the agreement to safeguard the integrity of the Berne Union against erosion by the lower level UCC. The means by which this was achieved is found in Article XVII of the UCC and its Appendix Declaration. Article XVII and the Appendix Declaration of the UCC establish two protective rules: first, that among states party to both the Berne and |