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development of the common law and state statutory recognition of the rights of paternity and integrity. They contended that the "introduction" of moral rights in the United States would upset existing business practices,72 that "courts faced with moral rights claims will look to European and other foreign precedents and positions to give content to the rights," that the Berne Convention is arguably self-executing, and that

even if Congressional declarations can forestall self-execu-
tion, courts faced with moral rights claims will in close
cases likely look for guidance to Berne and the laws of
those nations that are far more familiar with the rights
mandated by the Convention. Thus, there will be substan-
tial pressure for the courts to expand the moral right once
recognized.73

Finally, the opponents argued that, notwithstanding Congressional declarations that current law was sufficient, the simple fact of Berne adherence would create pressure on the courts to "judicially legislate" and on legislatures to strengthen protections for the rights of paternity and integrity.74

Those arguing for stronger protection for the rights of paternity and integrity were representatives of film directors, screenwriters, and visual artists, and, appearing as an independent expert, a law professor. They contended that "artists rights is at the heart of the treaty-it gives the treaty its special character and its moral tone," 75 and that current law is insufficient to protect those rights.76

When the language of Article 6bis is compared with the evidence that has been offered to suggest that moral rights are substantially protected in the U.S., it is clear that, aside from some recently-passed statutes in four [now eight] states, moral rights are not protected in any meaningful sense.

First, they are not protected as such. [With one exception], a long line of cases has expressly rejected the concept, and even [that case] is susceptible to other interpretations.

Second, the Copyright Act, except for one very specialized area, does not recognize the distinction between moral and economic rights on which Article 6bis is predicated and without which its application is impracticable.

72 Statement of John Mack Carter, for the Magazine Publishers Association, House Hearings, supra note 9, September 16, 1987; statement of David Ladd, for the Coalition To Preserve the American Copyright Tradition, id.

73 Statement of David Ladd, for the Coalition To Preserve the American Copyright Tradition, House Hearings, supra note 9, September 16, 1987.

74 Id.

75 Statement of Sydney Pollack, for the Director's Guild of America, House Hearings, supra note 9, September 30, 1987.

76 See, e.g., statement of Edward Damich, Professor, George Mason University School of Law, House Hearings, supra note 9, September 30, 1987; statement of Sydney Pollack, for the Director's Guild of America, id.; statement of Frank Pierson, for the Writers' Guild of America, id.; statement of William Smith, id.

Third, the attempt to find inchoate moral rights protection in more familiar causes of action is largely wishful thinking [footnotes omitted].77

Finally, this group of witnesses dissented from the view of the opponents to Berne adherence that increased protection of the rights of paternity and integrity would dramatically change existing business practices. They presented legislative alternatives that would, they argued, minimize such changes. To counter these concerns, they argued that the experience in countries with moral rights systems has been favorable.78

2. W.I.P.O. Roundtable Discussions in Geneva

The international copyright experts in Geneva were virtually unanimous in their opinion that the United States should adhere to Berne, that the sufficiency of our domestic law in respect of all Berne obligations was a matter for the United States to determine,79 and that our current statutory and common law is sufficient to meet the requirements of Article 6bis. 80 They testified that fears of legislative or judicial expansion of moral rights, based solely on adherence to the Berne Convention, are unjustified.81 These experts were also unanimous in agreeing that the moral rights systems in their countries, which were often much more extensive than the rights imposed by Article 6bis, in no way deterred the free flow of information and culture.82 Finally, they stressed that how any state of the Berne Union chooses to define, protect, and deal with the alienability of "moral rights" had no force or effect on the discretion of any other state in this regard.83

3. Meetings in Paris

In Paris, the Committee delegation met with international film producers, international film directors, and representatives of the French Ministry of Culture and Communications. The producers urged United States adherence to Berne, and expressed support for the United States' practice of granting final artistic control over a

77 Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM.-VLA J. OF LAW & THE ARTS. 655, 661-662 (1986).

78 See, e.g., statement of Edward Damich, Professor of Law, George Mason University School of Law, House Hearings, supra note 9, September 30, 1987; statement of Sydney Pollack, for the Director's Guild of America, id.; statement of Frank Pierson, for the Writers' Guild of America, id.

79 See, e.g., testimony of Dirk Verkade, Professor of Law, Catholic University, Nijmegen, the Netherlands, Roundtable Discussions, supra note 10, November 25, 1987.

80 See, eg, testimony of Dirk Verkade, Professor of Law, Catholic University, Nijmegen, the Netherlands, Roundtable Discussions, supra note 10, November 25, 1987; testimony of Milagros del Corral, Secretary General, Spanish Federation of Publishers Associations, Madrid, Spain, id. 81 "[T]he opponents of the Berne Convention on the basis of this moral right issue fear that United States courts might be impressed by the European philosophy as it has been taken down into statutory or case law. But that is up to you yourself to decide whatever you want to take from that source and it has nothing to do with the text of the Berne Convention."

Testimony of Gunnar Karnell, Head of the Law Department, Stockholm School of Economics, Stockholm, Sweden, Roundtable Discussions, supra note 10, November 25, 1987.

82 See, e.g., testimony of Margret Möller, Ministerial Counsellor, Federal Ministry of Justice, Bonn, Germany, Roundtable Discussions, supra note 10, November 25, 1987; testimony of Dirk Verkade, Professor of Law, Catholic University, Nijmegen, the Netherlands, id.; testimony of Milagros del Corral, Secretary General, Spanish Federation of Publishers Association, Madrid, Spain, id.

83 See, e.g., testimony of Gunnar Karnell, Head of the Law Department, Stockholm School of Economics, Stockholm, Sweden, Roundtable Discussions, supra note 10, November 25, 1987.

film to the producer, rather than the director or screenwriter. They were critical of moral rights as found in some Berne countries, contending that placing control over films in the hands of the director or screenwriter has been detrimental to the European film industry.

The directors, not surprisingly, expressed precisely the opposite view. They urged the delegation to adhere to Berne, and to enact strong moral rights legislation in that context, contending that even in countries with moral rights systems, the integrity of films has been seriously impaired. They further opined that the spirit of the Berne Convention required such legislation.

Officials of the French Ministry of Culture and Communications also urged our adherence to Berne and stated their view that, in general, current United States law appeared adequate to enable us to do so.

4. Other Commentary

The Director General of the World Intellectual Property Organization, Dr. Arpad Bogsch, has stated that:

[I]n my view, it is not necessary for the United States of America to enact statutory provisions on moral rights in order to comply with Article 6bis of the Berne Convention. The requirements under this Article can be fulfilled not only by statutory provisions in a copyright statute but also by common law and other statutes. I believe that in the United States the common law and such statutes (Section 43(a) of the Lanham Act) contain the necessary law to fulfill any obligation for the United States under Article 6bis, 84

5. Conclusion

The Committee recognizes that there is no single Federal statute relating specifically to "moral rights" of authors. Berne, however, does not so require.85 In fact, according to Article 6bis, paragraph (3), the means of redress for the rights provided "shall be governed by the legislation of the country where protection is claimed." 86 The Committee also recognizes that while protection of the rights of paternity and integrity in the United States may not be as broad as it is in some Berne member states, there are other members of Berne that impose even more limited protection.87 As the Ad Hoc Working Group concluded in its Final Report:

[T]here are substantial grounds for concluding that the totality of U.S. law provides protection for the rights of pa

84 Letter from Dr. Arpad Bogsch, Director General, World Intellectual Property Organization, to Irwin Karp, Esq., June 16, 1987.

85 Ad Hoc Working Group Final Report, supra note 5, at 548-9.

86 The term "legislation" as used in the Berne Convention includes the common law. REPORT ON THE WORK OF MAIN COMMITTEE I, Para. 15, in RECORDS OF THE INTELLECTUAL PROPERTY CONFERENCE OF STOCKHOLM (1967) 1134 (W.I.P.O. 1971).

87 The W.I.P.O. Guide notes that the right of integrity "is very elastic and leaves for a good deal of latitude to the courts." W.I.P.O. Guide, supra note 34, at 42. According to the Ad Hoc Working Group, Australia, Ireland, Liechtenstein, and South Africa "do not grant the right to claim authorship" and "Berne-member legislation [on the right of integrity] is elastic-stretching from total absence of statutory protection of integrity to detailed provisions in countries such as Germany." Ad Hoc Working Group Final Report, supra note 5, at 550, 554.

ternity and integrity sufficient to comply with 6bis, as it is
applied by various Berne countries.88

The Committee has been persuaded by the testimony of the majority of the witnesses before the Subcommittee, the conclusions of the international copyright experts whose advice the Subcommittee sought, and the comments of many other distinguished interested parties. Based on a comparison of its laws with those of Berne member countries, and on the current status of Federal and State protections of the rights of paternity and integrity, the Committee finds that current United States law meets the requirements of Article 6bis.

6. Moral Rights and Self-Execution

Article 6bis is closely tied to the issue of whether the Berne Convention is self-executing. Some of the witnesses testifying before the Subcommittee on Courts, Civil Liberties and the Administration of Justice expressed concern that, despite a Congressional determination that the provisions of Berne may be implemented only through appropriate domestic legislation (see discussion supra), the Article 6bis rights may somehow take effect. 89 These witnesses were in a small minority. Otherwise, the Subcommittee heard virtually unanimous opinion that, because the Berne Convention is not self-executing, adherence standing alone would not cause the courts or legislatures to strengthen such protections.90

Berne's non-self-executing nature obviates such concerns, but because they have continued to be expressed, the Committee believes that an explicit discussion of the issues of moral rights and self-execution is desirable.

The Committee states unequivocally that Berne is not self-executing, that domestic law is not in any way altered except through the implementing legislation itself, and that the implementing legislation is absolutely neutral on the issue of the rights of paternity and integrity.

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To make this fact abundantly clear, the Committee has adopted language that declares in Section 3(1) that Berne is not self-executing, and in Section 3(2) that this country's obligations under Berne "may be performed only pursuant to appropriate domestic law,' and that, according to Section 3(3), those obligations are satisfied by the amendments made by H.R. 4262, together with the other laws existing on the date of enactment of the implementing legislation. Furthermore, Section 3(3) declares that for the purpose of satisfying those obligations, it is only the rights and interests arising under those amendments or those existing laws that may be claimed. In other words, adherence to Berne will have no effect whatsoever on the state of moral rights protections in this country. Since the Committee finds that existing law is sufficient to enable the United States to adhere to the Berne Convention, the implement

88 Ad Hoc Working Group Final Report, supra note 5, at 555.

89 Statement of David Ladd, for the Coalition to Preserve the American Copyright Tradition, House Hearings, supra note 9, September 16, 1987.

90 See, eg, statement of the National Committee for the Berne Convention, July 2, 1987; statement of Kenneth Dam, Vice President, IBM Corporation, House Hearings, supra note 9, September 16, 1987; statement of Peter Nolan, for the Motion Picture Association of America, id.; Ad Hoc Working Group Final Report, supra note 5, at 556.

ing legislation is completely neutral on the issue of whether and how protection of the rights of paternity and integrity should develop in the future. The Committee stresses that the phrase "for the purpose of satisfying such obligations" in Section 3(3) is intended to assure United States courts that adherence to Berne is not, of itself, a basis for any cause of action. Outside the context of Berne, the courts and legislatures are free to act, or to not act, on questions concerning the rights of paternity and integrity.

Section 4 of the bill reinforces Berne's non-self-executing nature by construing the Convention's relationship with domestic law. It finds in Section 4(a)(1) that Berne's provisions shall be given effect under title 17 of the United States Code (as amended by H.R. 4262) and by any other relevant provision of Federal or State statutory or common law. Section 4(a)(1) must be read in conjunction with the provisions of Section 4(b), Section (6)(2), and Section 7 of the bill. Because Berne is not self-executing, Section 4(a)(2) provides that Berne's provisions are not enforceable in the courts. No action brought pursuant to the provisions of the Convention itself will be successful; instead, an independent foundation in Federal or State statutes or the common law must exist.

Finally, Section 4(b) of the bill tracks the language of Article 6bis, and provides that any right of an author to paternity or integrity, whether claimed under Federal or State statutory or common law, is not expanded or reduced by Berne adherence and the satisfaction of our obligations under Berne. Adherence and the satisfaction of our obligations under Article 6bis are intended to have no effect on the status of these rights.

A related statutory provision, set forth in Section 6 of the bill, amends 17 U.S.C. § 104, and describes the effect of the Berne Convention. It declares that no right or interest in a work protected under title 17 may be claimed by virtue of, or in reliance upon, the Convention's provisions or the United States adherence to the Convention. Furthermore, any rights in a work eligible for title 17 protection that derive from title 17, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the Convention's provisions or the United States adherence to the Convention. In other words, Berne's provisions themselves, and the simple fact of adherence to the Convention, will not in any way affect current law or its future development. As Section 3(2) of the bill makes clear, it is only through appropriate domestic law that our obligations under Berne may be performed. To the extent that courts, in interpreting our domestic laws, properly look to the laws of foreign countries, they may continue to do so. The fact of Berne adherence will not enable them to look to such laws to any greater or lesser degree.

Finally, H.R. 4262 amends 17 U.S.C. § 301, relating to preemption of other laws, to create a new subsection (e), which provides that adherence to Berne, and the satisfaction of United States obligations under Berne, does not affect the scope of Federal preemption. This amendment once again reinforces the neutrality of the implementing legislation: adherence to Berne, and the satisfaction of our obligations under the Convention, will have no effect on the law of preemption under section 301.

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