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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 İsraeli 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 de clared) 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.
Fifth, Mr. Chairman, let me make mention of the preamble of the Tunis Model Law for Developing Countries, which was formulated by a committee of experts in February 1976 convened jointly by WIPO and UNESCO; 27 countries participated in that meeting and in the preamble it says clearly that the Model Law for developing countries has adopted the terminology of the Berne Convention for the reason that, "unlike the Universal Convention, which makes use of fairly general terms, the Berne Convention contains a number of detailed provisions which should be included in national laws.” It is my very personal view that, as concerns the asserted higher or lower level of protection, the differences in the two Conventions are of no consequence or concern to the developing countries and this is why we find that a great majority of developing countries particularly the larger ones, are members of the Berne Convention. It is just this: the Berne Convention has a more detailed codification. This is how I feel, and this is how many developing countries see it for the moment. Also all the developing countries' recent legislation has been based on the provisions of Berne as I have mentioned to you.
Sixth, U.S. adherence to Berne would provide a more solid basis for an appropriate international copyright system. It would be welcomed, i can assure you, by 44 developing countries members of Berne, including my own country. This has in fact been stated by the specialists from India who attended the first meeting, in 1978, of a group of consultants, which was then discussing in WIPO the compatibility of Berne and the new U.S. law of 1976.
Seventh, such adherence would considerably enhance global protection of copyright and would strengthen anti-piracy measures, already being taken by a number of developing countries on their own, and will considerably aid and assist these measures to ensure an effective global respect for copyright. And we look forward to your country, also, putting its might to this effort.
Eighth, Mr. Chairman, is the final point. In the last ten years, as I said, WIPO's development cooperation programs have covered for the purpose of creating an awareness of copyright, 65 meetings of an informational kind, which have been attended by 3,000 participants from over 100 developing countries. We have held these meetings, hosted by various countries both developed and developing: Australia, Austria, Federal Republic of Germany, France, Italy, Sweden, Switzerland, United Kingdom, Hungary, Algeria, India, Senegal, to name only a few. The United States could also, with its huge cultural industry, its enormous production of copyrighted material, and its related infrastructure, help in this direction. Perhaps it has not done so before because it has not adhered to the Berne Convention. We look forward to, not only your adherence but also your help in the organization of these information dissemination meetings. I can assure you that, having just returned from such a meeting in Asia and the Pacific, and other meetings of developing countries, they all ask on camera when will the United States adhere to the Berne Convention? Thank you, Mr. Chairman.
Mr. KASTENMEIER. Thank you very much, Mr. Alikhan, for that presentation. The Chair would now like to call on Mr. György Boytha.
Mr. BOYTHA. Thank you, Mr. Chairman. Mr. Chairman, Mr. Director General, distinguished Congressmen, I am grateful for the opportunity to participate in this exchange of views on questions relating to the United States adherence to the Berne Convention.
My country, Hungary, is a small country of Europe. We adhered to the Berne Convention in 1922, and now, after the lapse of 65 years, Hungary, along with other member states of the Berne Union, is looking forward with great expectation and interest to the United States participating in the more than 100 years of interplay between the development of the Berne Convention and the de velopment of national legislations in countries which adhere to that Convention.
During these 65 years Hungary experienced not only an increased protection of Hungarian works abroad; but, equally important, we can testify that the increased protection of foreign works also furthered the competitiveness of Hungarian works in the Hungarian market at home. An easy access to foreign works is harmful to national creativity, because users are inclined to use foreign works not protected or less protected than works of national authors in that country.
Based on the description of various subjects you so kindly submitted to us, I have prepared, of course, the content of a statement which I will not present now in its entire length. I would neverthe less address certain points preferred by you, Sir, such as increased protection under Berne, the relationship between Berne and other treaties, then questions relating to the direct or indirect operation of Berne. In this context I would be prepared to say a few words also about some special problems, such as the scope of national treatment which might be of interest with regard to joining Berne, and the so-called rectroactivity problem as well.
As to the increased protection under Berne, as we experienced it, I think it's not necessary to enumerate again all that has been mentioned in the various hearings in the House and Senate. I would nevertheless summarize or highlight the following points.
There are several particular rights articulated in the Berne Convention which are not even mentioned in the Universal Copyright Convention. Such rights are first of all the public communication rights-rights relating to the public communication of broadcasts, performances, recitations, cinematographic works, etc.; and it is of primordial interest now to have these rights protected all over the world with regard to international acts of using works.
Then, I would mention the fact that, whereas, under the UCC limitations are admitted without any specification or conditions, under the Berne Convention limitations can be imposed on authors rights only within certain limits clearly specified by the Berne Union, such as the respect of the integrity of the work claim to remuneration and even further conditions, for instance, regarding mechanical reproductions rights in Article 13 of the Berne Convention.
Thirdly, I wish to highlight the usefulness of prohibiting all formalities as a condition of protection, because an inadvertent ommission of some formality might deprive the owner of the copyright of enforcing his right in other countries which did not abandon such formalities.
Then I wish also to emphasize one other important feature of the Berne Convention, that it renders it possible to protect after the effective date of that convention, preexisting works against new acts of using them, which is not the case under the UCC.
As to other aspects of increased protection, I wish to highlight the importance of enlarging the number of countries to which international protection can be extended by adhering to the Berne Union. Mr. Alikhan already mentioned that there are countries now only party to the Berne Convention. These countries are altogether 24 so far; 17 of them adhered to the Paris version of that Convention; this means that the majority of those countries which are party only to the Berne Convention and not at the same time also to the UCC, have accepted the highest given level of international protection. That means that joining the Berne Convention would enable the United States to require the highest level of protection in a number of countries to which the United States had so far no copyright relations at all, or unclear relations only, as stated by the Copyright Office of the United States. Mainly African countries are involved and, among them, very important ones as Zaire, Egypt, but also other such countries should be considered, in particular, Turkey. My country has well-established mutual relations with Turkey, and that means that Hungarian works are protected in Turkey effectively; we can license publishing and performance of Hungarian works there, and of course we also have to protect works of Turkish authors. We are now establishing mutual_relationships with several African authors' societies in Egypt, Zaire, Senegal, Mali.
We cooperated with WIPO in training courses and so we can contribute to the training of officers from African countries linked to Hungary in the field of copyright only by the Berne Convention; we can participate in training them and also further the establishment of international protection of authors' rights in their countries.
Now, as to other types of conventions and, in particular, other copyright conventions, what questions arise with regard to adhering to Berne? Berne, as you all know, distinguished Congressmen, has an absolute priority in being applied to the protection of authors' works vis-à-vis other conventions, including the Universal Copyright Convention. There is a "safeguard clause" in that convention which has not applied since 1971 to developing countries, but is still, in force as regards the so-called developed countries, providing that, even if a country dissolves its ties to Berne, its works cannot enjoy the protection under the UCC. That means that Berne applies in the relation of more than 50 countries which are parties to both major copyright conventions, and governs the relationships of the United States to all these countries once it adheres to that convention. Hungary is party to both conventions-to Berne and the UCC-but in actual fact UCC applies only in relation of Hungary to the United States, to the Soviet Union and 22 other countries which are bound so far only by the UCC. Thus, in respect to the majority of UCC countries, it is the Berne Convention that applies and, by virtue of several provisions contained in the Universal Copyright Convention even as regards the interAmerican treaties and other bi-lateral agreements, it will be the