other people around the world that are concerned with the same things that we are.

Dr. BOGSCH. Mr. Chairman Kastenmeier, Congressmen Moorhead, Berman, Fish and Hyde. We are extremely honored that you have decided to include WIPO in your business trip in Europe, in order to explore the situation as far as the Berne Convention is concerned so as to enable you to make a fully considered decision on the legislation that would enable the United States of America to adhere to the Berne Convention. As you have said, Sir, this is a quite unique method, the first in history. I think we can be very happy and satisfied that you have resorted to this unique method of enquiry. It is certainly a very practical one and should yield the desired results.

We have invited, on your behalf, and according to your selection, the ladies and gentlemen who are the experts here today. Although you may have met them briefly yesterday during our dinner, if you allow me, I shall just enumerate them in alphabetical order, indicating their titles and their nationality.

Mr. Shahid Alikhan is Director of the Developing Countries (Copyright) Division of the World Intellectual Property Organization (WIPO), and he is an Indian national.

Mr. György Boytha is the Director General of the Hungarian Bureau for the Protection of Author's Rights in Budapest, and he is a Hungarian national.

Mr. Jean-Louis Comte is the Director General of the Swiss Federal Intellectual Property Office in Berne, and he is accompanied by his Deputy, Mr. Roland Grossenbacher.

Mrs. Milagros Del Corral is the Secretary General of the Spanish Federation of Publishers Associations in Madrid and she is a Spanish national.

Professor Dr. Robert Dittrich is Ministerialrat in the Federal Ministry of Justice in Vienna, Austria, and he is an Austrian national.

Mr. Mayer Gabay is Commissioner of the Civil Service of the Government of Israel in the Ministry of Finance, and he is an Israeli national.

Professor Gunnar Karnell is Head of the Law Department of the Stockholm School of Economics, and he is a Swedish national.

Mr. Jukka Liedes is Special Adviser on Copyright Affairs in the Ministry of Education in Helsinki and he is a Finnish national.

Mrs. Margret Möller is Ministerialrätin (Ministerial Counsellor) in the Federal Ministry of Justice in Bonn and she is a national of the Federal Republic of Germany.

Mr. Werner Rumphorst is Director of the Legal Affairs Department of the European Broadcasting Union, a non-governmental international organization with its headquarters in Geneva, Swit

zerland.

Mr. Victor Tarnofsky is the Assistant Comptroller of the Industrial Property and Copyright Department in London, United Kingdom, and he is a United Kingdom national.

Professor Dr. Dirk Verkade is Professor of Law in the Catholic University in Nijmegen in the Netherlands, and he is a national of the Netherlands.

Mr. Jean-Alexis Ziegler is Secretary General of the International Confederation of Societies of Authors and Composers (CISAC), an international non-governmental organization with headquarters in Paris, France.

You have decided, Sir, that you would have four panels altogether, and I think that your wishes have been met as far as the composition of the four panels is concerned. Thank you Sir.

Mr. KASTENMEIER. Thank you, Dr. Bogsch. Just a few words before we commence. It had been our hope that the proceedings would be relatively informal, that we would try to aggregate major issues in four panels, two to be presented this morning and two tomorrow, and that several persons would be asked among you to present a discussion in each of the four subject areas. I have to make the request that the prepared remarks you might make, if indeed they go on for a period of time in excess of perhaps ten minutes, that you might summarize your remarks. It appears to be necessary in order that we might hear all panelists, and that we may have an interchange of questions and coments on the subject, and directed to each of the panelists. In any event, we would have the benefit of receiving your remarks in full, which will comprise a record that we would have to study and perhaps even communicate with you further in terms of follow-up. Your remarks may raise questions that we may not fully understand.

PANEL 1.-THE PLACE OF THE BERNE CONVENTION IN

INTERNATIONAL LAW

Our first panel today, and may I say that, for the purpose of actually getting through the proceeding, we have allocated just over an hour for each panel, which is not adequate, we understand, but nonetheless that is the way we have planned. We would hope to conclude both panels by 12:30 p.m. The first panel will discuss, in the general sense, the place of the Berne Convention in international law. There are a number of questions which this panel may raise: the relationship of Union States to the Convention and the nature of the protection, as perhaps contrasted to Non-Ur.ion States; the relationship between the Universal Copyright Convention and the Berne Convention; and perhaps any other matters, such as the relationship of Berne to any code or copyright standard that might be pursued by GATT. Also, whether the character of the Convention presumes a self-executing nature and whether or not the Union has been successful in responding to the needs of all its adherents, including developing countries, and to what extent perhaps the last revisions have been effective in that regard. Doubtless other aspects will be discussed in the context of the Berne Convention in international law.

Our three consultants, to whom we are very indebted for their presence and their presentations this morning, will be in order Mayer Gabay of Israel, Shahid Alikhan of India, and György Boytha of Hungary. Therefore, I would like to open up at this point by inviting Mr. Gabay to make his presentation.

Mr. GABAY. Chairman Kastenmeier. I am indeed gratified to be here today. It's been exactly eight years since on a rather cold November evening in New York City, I addressed the United States

Copyright Society on this specific issue, trying to propose (this was in November '79) that the United States should join the Berne Convention. I only hope that eight more years will not elapse before the US joins the Berne Convention.

Israel is in a very special position because it has aspects both of a developing and a developed country. On the one hand, in a number of important areas, especially technological areas, it has achieved some major achievements: yet, in other respects it is still largely an importer of copyright works, due to its position, and also due to the fact that its language is used only within the State of Israel. Israel is a member of both the Berne Convention and the Universal Copyright Convention. Israeli law affords protection through the British Copyright Act of 1911-this is interesting because some facets of the British law are applicable also to the United States, and that always was applied to Israel during the British mandate. This law has been amended many times, and at present a committee is working on a new law of copyright.

I have prepared a long statement, but since, as you have suggested, we should address the committee only within ten minutes. I would concentrate on two issues. One is the question of the selfexecution of Berne, and the other one is the relationship between Berne and the GATT.

On the first issue, the self-execution of Berne. Under Article 36 of the Paris Revision, also contained in the Stockholm Revision, Member States of Berne, at the time they become bound, must adopt the necessary measures to ensure the application of the Convention. There is no provision in Berne, however, express or implied, that requires the Convention to be self-executing. All that is necessary is that appropriate domestic legislation must be in effect at the material time in order to give efficacy to the provisions set out in the Convention. Israel, the United Kingdom, and most of the Commonwealth countries do not possess the means for a given treaty to take effect on a self-executory basis. There, domestic legislation, either existing or yet to be enacted, is required in order that a treaty or convention can have a legal effect and application.

We know that the United States does admit the self-execution of specific treaties, but not of others. Intellectual property treaties or conventions have never been self-executing in the United States. Accordingly, if and when the United States enters Berne, it's domestic copyright legislation must be able to give effect to the provisions of that Convention, but the Convention would not be self-executing if this is provided for by the Congress.

On Israel entering Berne, the essential basis for giving efficacy to the provisions in the Convention were already contained in the domestic legislation. The two facets that were introduced into the law comparatively recently were, respectively: moral rights and performing rights. The latter mentioned being set out in separate legislation. No problems of a fundamental nature were thus encountered as a result of the lack of such statutory provisions in the Israeli copyright legislation. And I would like to give you a specific example that came up before the Israeli Supreme Court dealing with moral rights.

In a decision from 1975, the Supreme Court dealt with the issue of the lack, at that time, of moral rights provisions in the Israeli

copyright legislation. Although one could base some facets of moral rights on different laws, such as the law of torts, there definitely was no provision in the copyright statute. The Court dealt with a very famous musical in Israel, and the plaintiff argued his case on both bases: the question of economic rights as well as moral rights, because some of his poems or pieces prepared for the musical, were distorted by another person, who finally prepared the poems and the musical aspects of the musical. And the Supreme Court decided that, since there was no provision in the local Israeli copyright law with regard to moral rights, the plaintiff could not win on that ground. He won his case on the economic basis because, as I said before, there was a question of copying some of the works that were previously prepared. However, the Supreme Court Justice Haim Cohen, a famous judge in Israel, criticized the Israeli Ministry of Justice for not having prepared the Israeli copyright law in such a way that would cover the moral rights provisions, and later on in 1981, we had prepared (at that time I was still the Director General of the Ministry of Justice-I was there until six months ago) a special law on moral rights.

Now this indicates, on the one hand that the Berne Convention was not self-executory, that is to say, as long as there was no provision in the Israeli law, one could not base his case on the Convention; at the same time it was felt by the Supreme Court, that we should cover that aspect in our internal law in order to comply with the international convention. This is, how Israel deals with the question of self-execution of Berne.

The question of Berne and GATT. This is also very interesting because in a recent agreement between Israel and the United States on the Free Trade Area Agreement (in which I was fortunate to take part in drafting it from the legal point of view) we have inserted a special provision, Article 14 of that Agreement, which deals specifically with intellectual property, and it reads as follows:

The parties reaffirm their obligations under bilateral and multilateral agreements relating to intellectual property rights, including industrial property rights in effect between the parties.

And it continues to reaffirm the obligations under the international conventions. It's an interesting example because I believe that what will happen in the future in GATT will be something similar. I don't think that GATT will be able to restablish a full scale code parallel to what we have now in Berne-it's not within the realm of GATT. But it might reaffirm the basic provisions of the Berne Convention and might possibly provide some sanctions based on international trade relations. Basically, it would be important, even under that condition, that the reaffirmaton would refer to the higher-level and more comprehensive convention, that is the Berne Convention, rather than the lower level, which is the Universal Copyright Convention. So that even from that point of view, which I understand is very important for the United States, it would be important and interesting to link any GATT provisions that will be accepted with the provisions of the Berne Convention.

I must admit that, personally, I have some doubts whether it was necessary at all to go through the GATT procedure, because I think

that even the aspect of sanctions which is lacking in the Berne Convention (I agree, this aspect is lacking in the Berne Convention) could be complemented through the Berne Convention. But if the United States and other countries prefer to do it via GATT, then, as I said, it would be important to link it to the Berne Convention rather than to the Universal Copyright Convention.

Finally, I want to deal with the question of developing countries. As I said before, Israel also has many aspects of a developing country. As you know, the Berne Convention as well as the Universal Copyright Convention, now have special provisions with respect to developing countries. However, we have declared (Israel has declared) that it would not use, or would not like to base its legislation on those provisions. It is the privilege of any country that would like to do so, but we have preferred to maintain our obligations under the higher level of the Berne Convention, without any concessions that were given to the developing countries.

Well, these are the main points. If you would like, I could submit a very long statement that I have prepared, but if there are any questions I will be happy to answer them. Thank you.

Mr. KASTENMEIER. Thank you very much, Mr. Gabay. And we would be pleased to accept your longer statement and we will defer questions and remarks pending the following two presentations. Now we will hear the presentation of Mr. Alikhan.

Mr. ALIKHAN. Mr. Chairman, I thank you very much for this opportunity to express my views at this panel. From a vantage point that I have occupied in WIPO for ten years, and previously as a senior civil servant in the Government of India, in the Ministry of Education, I will confine myself, in this very short statement of mine, to the Berne Convention and, developing countries. And I have to make the following points:

First, the Berne Convention has played a very significant role in encouraging national creativity in developing countries through national legislation based on the detailed provisions of the Convention.

Second, since the 1971 Revision of the Convention at Paris, 31 developing countries, or nearly 40 per cent of the total membership have adhered, in its entirety, to the Berne Convention, as revised in Paris.

Third, even the Appendix provisions, in favor of developing countries, have provided a mere possibility that has encouraged, in my opinion, voluntary licensing and normal commercial channels which have operated reasonably successfully. Only two developing countries, my own, India, and Mexico have opted to avail themselves of these provisions until 1994, but have not issued a single compulsory license. Interestingly, a senior official of the Government of India, while speaking at one of the recent international meetings in London, categorically stated that they had no intention, for the moment at least, of ever issuing such a license.

Fourth, there is much greater awareness today, in developing countries, of the importance of copyright. Thirty-seven developing countries have legislated since the last revision in 1971. Fifteen de veloping countries have revised their laws or signficantly modified or reinforced them. Almost all of these are based entirely on the provisions of the Berne Convention.