re self-execution, and that the answer to the question lies in the stitutions and laws of the member countries, as they choose to ly them.

The United States Constitution and Laws

In Western parliamentary systems, generally, treaties are only ernational obligations, without effect as domestic law; it is for parliament to translate them into law, or to enact any domestic slation necessary to carry out the obligations." 38

he United States Constitution not only provides that treaties all be the supreme Law of the Land . . 39 but it also grants President the power to make treaties, with the advice and cont of the Senate, and so long as two-thirds of the Senate cur. 40

tanding alone, these Constitutional provisions do not determine ether the Berne Convention is necessarily self-executing in the ted States. In any given instance, the issue is generally resolved an examination of three factors: first, the intent of the parties he treaty, drawn from the wording of the treaty and the surnding circumstances; 41 second, whether self-execution would ate other constitutional provisions; 42 and third, whether the ty's terms require specific action to be taken.43

he first factor, relating to the intent of the parties, is not deterative of whether the Berne Convention is self-executing in the ted States. As noted above, Berne's language leaves the decision he member countries; they may permit self-execution or disalit.

Cowever, the view of the United States Department of State rr[ies] substantial weight in these matters. . . "44 as does that he President.45 The State Department's representative, Under retary W. Allen Wallis, testified before the Subcommittee that general, intellectual property treaties should not be considered -executing in the United States. He noted the Ad Hoc Working up's Final Report and concluded that in particular, the Berne vention is not. He buttressed his conclusion with the letter of e President. . . to the Senate seeking advice and consent to acsion [,which] stated that 'implementation of the Berne Convenwill require legislation" [emphasis added]." 46 Under Secretary llis opined that "In the face of such clear intent, it is difficult to gine that any legal action instituted on the grounds that Berne elf-executing would be successful." 47

L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION at 156 (1972); RESTatement (RevISED) , Comment h.

U.S. CONST. art. VI, cl. 2.

U.S. CONST. art. II, section 2, cl. 2.

Restatement (Revised) § 131(4); U.S. v. Postal, 589 F.2d 862, 877 (5th Cir. 1979); 1 D. O'CONINTERNATIONAL LAW 271 (1965); memorandum by Assistant Legal Adviser for Economic rs Metzger (1951), cited in 14 M. WHITEMAN, Digest of INTERNATIONAL LAW 302, 309 (1970). Restatement (REVISED) § 131(4).

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

U.S. v. Postal, 589 F.2d 862, 883 (5th Cir. 1979).

Restatement (Revised) § 131, Comment h; Ad Hoc Working Group Final Report at 601.

Statement of W. Allen Wallis, Under Secretary for Economic Affairs, United States Departof State, House Hearings, supra note 9, July 23, 1987.

Id.

Interpretations of the treaty by Congress 48 are also relevant in this context.49 All of the bills seeking to implement the Berne Convention, including H.R. 4262, state in no uncertain terms that the Convention is not self-executing.50

Pursuant to the second factor, if the treaty requires action in an area constitutionally reserved exclusively to the Congress, it is not self-executing.51 For example, if the treaty requires money to be appropriated, it will not be considered self-executing, since under our Constitution only the Congress may appropriate money.52 Treaties requiring that individuals be criminally penalized are also not deemed self-executing.53 The obligations imposed by the Berne Convention fit completely into neither of these categories. However, an argument may be made that each of these categories weighs against a finding that Berne is self-executing in the United States. First, Article I, Section 8, clause 8 of the Constitution accords to both Houses of Congress the national power to create or withhold copyright protection. Second, the implementing legislation would extend criminal penalties to willful commercial infringement of works previously ineligible for protection in the United States.

The third factor, relating to whether the treaty's terms require specific action to be taken, was first set forth in the seminal case of Foster v. Neilson, 54 in which the United States Supreme Court examined the Florida cession treaty with Spain.55 The Court set forth the distinction between self-executing and non-self-executing treaties.

Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contractwhen either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court. 56

The Ad Hoc Working Group's Final Report concluded that "where a treaty 'expressly provide[s] for legislative action' it is not self-executing." 57 Comparing the language in Berne's Article 36

48 RESTATEMENT (REVISED) § 131, Comment h.

49 Id.; Ad Hoc Working Group Final Report, supra note 5, at 601.

50 See, e.g., 133 Cong. Rec. H1293-6 (daily ed. March 16, 1987) (statement of Representative Kastenmeier). See also H.R. 2962 (Representative Moorhead); S. 1301 (Senator Leahy) and S. 1971 (Senator Hatch).

51 RESTATEMENT (REVISED) § 131, Comment i. See generally, LIBRARY OF CONGRESS, STUDY PREPARED FOR THE SENATE COMM. ON FOREIGN RELATIONS, TREATIES & OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, 98th Cong., 2d Sess. (S. Print 98-205) (1984). 52 Id.; U.S. v. Postal, 589 F.2d 862, 877 (5th Cir. 1979).

53 RESTATEMENT (Revised) § 131, Comment i.; U.S. v. Postal, 589 F.2d 862, 877 (5th Cir. 1979) Hopson v. Kreps, 622 F.2d 1375, 1381 (9th Cir. 1975).

54 27 U.S. (2 Pet.) 253 (1829).

55 The Court held the treaty to be non-self-executing, but in United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833), the Court, based on additional information, found that it was self-executing.

56 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).

57 Ad Hoc Working Group Final Report, supra note 5, at 600, quoting from U.S. v. Postal, 589 F.2d 862, 877 (5th Cir. 1979).

with that used in the 1883 Paris Convention for the Protection of Industrial Property, the Ad Hoc Working Group found identity of language in important respects, and concluded that since the Paris Convention has been judicially interpreted to be non-self-executing,58 Berne should be similarly interpreted.

The language of Article 36, taken alone, does lead to such a conclusion. The comments in the W.I.P.O. Guide, however, make such a conclusion less clear since, as noted above, they provide that whether the Berne Convention is self-executing or not depends on the constitutions and laws of the member countries, and that either result is acceptable; thus, an analysis of the Constitution and laws of the United States is required. The Ad Hoc Working Group recognized this ambiguity when it stated that "the detemination of whether Berne is a self-executing treaty in a given member country is a 'matter governed by [that] country's constitutional rules.'" 59

The other witnesses who testified before the Subcommittee were unanimous in declaring that Berne is not self-executing in this country.60

3. Conclusion

The provisions of the Berne Convention itself make clear that the Convention need not be self-executing in the United States. Those provisions leave the decision about self-execution to each of the member nations.61 Under the Constitution and laws of the United States, no conclusion appears appropriate except that the Convention is not self-executing in this country. The view of the Executive Branch weighs heavily, as does the intent of the Congress as expressed in all proposed implementing legislation. The analogy to other kinds of Conventions requiring action constitutionally reserved to the Congress adds weight to the conclusion. Finally, the unanimity of all witnesses who expressed a view on the question renders that conclusion inevitable.

B. THE "MORAL RIGHTS" OF AUTHORS

Article 6bis of Berne has generated one of the biggest controversies surrounding United States adherence to Berne. It provides that:

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogato

58 Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3rd Cir. 1987). Similarly, the House Judiciary Committee found that the Patent Cooperation Treaty, which incorporates the Paris Convention's language, is not self-executing. H. REP. No. 99-807, 99th Cong., 2d Sess. 14 (1986).

59 Ad Hoc Working Group Final Report, supra note 5, at 601, quoting from the W.I.P.O. Guide, supra note 34, at 21.

60 See, e.g., statement of Kenneth W. Dam, Vice President, IBM Corporation, House Hearings, supra note 9, September 16, 1987; statement of Barbara Ringer, id., February 10, 1988; statement of Morton David Goldberg, for the Information Industry Association, id.; statement of Peter F. Nolan, for the Motion Picture Association of America, id., September 16, 1987. See also, statement of the National Committee for the Berne Convention, September 10, 1987.

61 Statement of Dr. Robert Dittrich (Ministerial Counsellor, Federal Ministry of Justice, Austria), Roundtable Discussions, supra note 10, November 25, 1987.

ry action in relation to, the said work, which would be prejudicial to his honor or reputation.62

Although it does not use the term, the rights Article 6bis sets forth are often described-somewhat inaptly-as "moral rights." Article 6bis assures to authors the right to claim authorship ("the right of paternity") and the right to object to certain acts affecting the integrity of the work or the reputation of the author (“the right of integrity"). While the term "moral rights" often encompasses more than these two rights,63 only the rights of paternity and integrity are relevant in the Berne context. Under Berne, these rights are distinguished from and independent of the economic rights generally provided in copyright laws and guaranteed elsewhere in the Convention. There is no doubt that the Berne Convention requires member states to accord to works protected under the Convention the rights specified by Article 6bis.

The basic issue raised by Article 6bis is whether the current law of the United States is sufficient, or whether additional laws are needed, to satisfy its requirements. The Subcommittee on Courts, Civil Liberties and the Administration of Justice inquired extensively into this question. It was the sole focus of two days of hearings, and was discussed by nearly every other witness testifying on other days. In addition, a major portion of the Subcommittee's trip to Geneva and Paris was spent seeking insights about this question. One of the four panels of experts assembled at W.I.P.O. was devoted exclusively to moral rights, and the Subcommittee's meetings in Paris with international film producers, international film directors, and the French Ministry of Culture, focused primarily on the issue.

1. Hearings in Washington, D.C.

The witnesses testifying at the Subcommittee's hearings included some of the foremost copyright scholars and practitioners in the country. The great majority testified that the United States should adhere to Berne, and that no additional law-making was needed to satisfy the standard of Article 6bis.

There were two dissenting views at the hearings. On the one hand were representatives of some publishers, who opposed United States adherence to Berne, primarily because they feared that Article 6bis would disrupt existing business practices. On the other hand were representatives of artists, who argued that Berne requires an explicit and strong statutory recognition of moral rights. The majority of witnesses testified that current laws in the United States, including Federal and State statutory and common law, are sufficient, and that no legislation is needed, to comply with the requirements of Article 6bis. 64 The Administration's opin

62 Berne Convention Art. 6bis.

63 2 M. NIMMER ON COPYRIGHT § 8.21 (1987); W.I.P.O., Glossary of Terms of the Law of Copyright and Neighboring Rights.

64 See, e.g., statement of Barbara Ringer, House Hearings, supra note 9, February 10, 1988: "[C]urrent U.S. legislation and jurisprudence, especially the common law, are fully sufficient to meet our obligations under Berne without the need for federal statutory provisions on the socalled 'moral right.'"; statement of John M. Kernochan, Nash Professor of Law, Columbia University, March 1, 1988.

ion, expressed through the legislation introduced by Representative Moorhead 65 and through the testimony of various Administration witnesses, 66 was consistent with this majority view.

According to this view, there is a composite of laws in this country that provides the kind of protection envisioned by Article 6bis. 67 Federal laws include 17 U.S.C. § 106, relating to derivative works, 17 U.S.C. § 115(a)(2), relating to distortions of musical works used under the compulsory license respecting sound recordings; 17 U.S.C. § 203, relating to termination of transfers and licenses, and section 43(a) of the Lanham Act, relating to false designations of origin and false descriptions. State and local laws include those relating to publicity, contractual violations, fraud and misrepresentation, unfair competition, defamation, and invasion of privacy. In addition, eight states have recently enacted specific statutes protecting the rights of integrity and paternity in certain works of art.68 Finally, some courts have recognized the equivalent of such rights. 69

Finally, these witnesses countered concerns about changes in existing business practices upon adherence to Berne by citing their own experiences in countries with moral rights protections.70

The opponents of Berne adherence, representing some magazine publishers,71 were concerned about its implications for the future

65 H.R. 2962, 100th Cong., 1st Sess., 133 Cong. Rec. E2897-8 (daily ed. July 15, 1987) (statement of Representative Moorhead).

66 For example, in transmitting the proposed legislation to Speaker Jim Wright, Secretary of Commerce Malcolm Baldrige stated: "[The bill] does not explicitly refer to an author's rights to be named as author and to preserve the integrity of the work that are commonly referred to as moral rights. Rather, it proceeds on the principle that the totality of our law, including the common law of torts, provides protection at a level sufficient to comply with the convention's requirements."

Letter from the Honorable Malcolm Baldrige, United States Secretary of Commerce, to the Honorable Jim Wright, Speaker, United States House of Representatives, July 6, 1987. See also, statement of the Honorable Malcolm Baldrige, House Hearings, supra note 9, July 23, 1987; statement of the Honorable Allen Wallis, Under Secretary for Economic Affairs, United States Department of State, id.; statement of the Honorable Clayton Yeutter, United States Trade Representative, id.

67 See, e.g., statement of Paul Goldstein, Professor, Stanford University School of Law, House Hearings, supra note 9, February 10, 1988; statement of Barbara Ringer, id.; Ad Hoc Working Group Final Report, supra note 5, at 547; statement of Kenneth Dam, Vice President, IBM Corporation, House Hearings, supra note 9, September 16, 1987; statement of Morton David Goldberg, for the Information Industry Association, id. February 10, 1988; statement of Peter F. Nolan, for the Motion Picture Association of America, id., September 16, 1987; statement of the National Committee for the Berne Convention, September 10, 1987.

More than 20 years ago, Professor Melville Nimmer wrote that "it might well be concluded", that the totality of then-current law was sufficient to meet at least a "narrowly construe[d]" definition of our obligations under Article 6bis. Nimmer, Implications of the Prospective Revisions of the Berne Convention and the United States Copyright Law, 19 STAN. L. REV. 499, 525 (1967). As discussed in the text, the law has changed dramatically since then (perhaps the prime example being the State "moral rights" statutes), adding even more weight to this conclusion. 68 CAL. CIV. CODE § 987 (West Supp. 1988); LA. REV. STAT. ANN. §§ 51:2151-51:2156 (West 1987); ME. REV. STAT. ANN. tit.27, § 303 (Supp. 1987-1988); MASS. GEN. LAWS ANN. ch.231, § 85S (West Supp. 1988); N.J. STAT. ANN. §§ 2A:24A-1 to 2A:24A-8 (West 1987); N.Y. ARTS & CULT. AFF. LAW §§ 14.51-14.59 (McKinney 1984); PA. STAT. ANN. tit.73, §§ 2101-2110 (Purdon Supp. 1987); R.I. GEN. LAWS §§ 5-62-2 to 5-62-6 (1987).

69 See, e.g., Gilliam v. American Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976).

70 See, eg, statement of Kenneth Dam, Vice President, IBM Corporation, House Hearings, supra note 9, September 16, 1987; testimony of Paul Goldstein, Professor, Stanford University School of Law, id., February 10, 1988.

71 Other publishers disavowed this opposition. Letter to the Honorable Robert W. Kastenmeier, Chairman, House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice, from Addison-Wesley Publishing Co., Bantam Doubleday Dell Publishing Group, Elsevier Science Publishing Co., General Publishing Group Macmillan Publishing Co., Harcourt Brace Jovanovich, Hudson Hills Press, John Wiley & Sons, Princeton University Press, Simon & Schuster, and Springer-Verlag, New York, September 29, 1987.