ROUNDTABLE DISCUSSIONS ON UNITED STATES ADHERENCE TO THE BERNE CONVENTION NOVEMBER 26, 1987 HOUSE OF REPRESENTATIVES, Geneva, Switzerland. The members met at 10 a.m. at the World Intellectual Property Organization, Geneva, Switzerland, Hon. Robert W. Kastenmeier (chairman of the delegation) presiding. Present: Representatives Kastenmeier, Fish, Moorhead, Hyde and Berman Staff present: Michael J. Remington, chief counsel; Virginia Sloan, counsel; and Thomas E. Mooney, associate counsel Also present: Ralph Oman, Register of Copyrights; Lewis Flacks, Policy Planning Advisor, Copyright Office; Arthur E. White, Director of Congressional Affairs, U.S. Patent and Trademark Office; Colonel Frank Moran, United States Air Force; and TSgt Bryan Williams, United States Air Force. Mr. KASTENMEIER. Good morning to everyone. This morning we will have Panels 3 and 4. It is our expectation to clear our work by 12 noon. We will try to break up the two panels therefore into more or less an hour and a quarter each and the chairman again will beg indulgence of our consultants in terms of summarizing their statements so that we may in fact have an opportunity for discussions of the subject matter. After we conclude this morning, some of the delegation will be able to stay a bit longer perhaps and if you are not under time constraints will be able to converse somewhat informally. Other members of the delegation will be rushing off to make transportation connections, including myself. I must say that both discussions yesterday were very high level and of considerable assistance to us. We would hope and expect that this morning's presentations and commentary will likewise meet that high standard. PANEL 3.—THE BERNE CONVENTION AND HIGH TECHNOLOGY Panel 3 was devised to confront the proposition of the Berne Convention and high technology. I note that often conventions or codifications are designed or oriented towards protection of traditional forms of cultural expression. It is a continuing issue in many countries as to what the application would be or indeed what it is, especially in the case of this Convention, for new high technologies such as computer programs, semi-conductor chips, data bases, communications such as satellite signals, cable television, technology in (1177) private copying and many other aspects reflecting the advance of technology in many of our societies. The question, of course, is the extent that any convention is adaptable or in fact can contemplate these areas without modification. We, in the United States, are also interested in the degree of protection which Berne contemplates for architectural works for it is assumed that in that respect, in particular, the United States would have to conform its own copyright laws. So with that and with other aspects of what we anticipated in terms of the interface of high technology and the Berne Convention, I will invite our four participants-Professor Gunnar Karnell, Monsieur Jean-Louis Comte, Mr. Roland Grossenbacher, and Mr. Jukka Liedes-to make their contributions. The first person we would like to greet in that connection is Professor Karnell. Professor KARNELL. Thank you Mr. Chairman. I am not expressing any Swedish views here. I am expressing my personal views, having worked within the copyright field since about 1958. I was a delegate of Sweden to the 1967 Stockholm Conference whose material Articles 1 to 20 of the Berne convention are part of the Paris text. I have been on the Swedish Committee to revise the Swedish Copyright Statute since 1976. Nevertheless, I shall try to take a more generalist view than this background might indicate. To my experience, the Berne Convention, in its present shape, has coped well with the technological development, by being as imprecise as it is. It has a high standard with regard to protection level internationally but that does not depend upon its being very specific in sharpening rights in one or the other respect. It is the general character of the rights given, the general character of the subject matter protected, that is at the very essence of it all. Even if the Berne Convention would not look the same if it was invented today-and I am sure it would not-it is a good tool for developing an acceptable standard of protection in the world of today. And I say that also regarding the topics at the center of this morning's discussion being then high technology and media developments over the last decade and what could be foreseeable from the standpoint of today. If you accept adherence to Berne, you will set an example to the world at the highest general level perceivable today in development of these rights. The issue of high technology in new media tends, to cloud the modern world's conscience about the importance of the individual author. I should like to say something about that: The individual author disappears rather often in considerations about the uses of what he has done and about the economics attached to various forms of such uses. It is my experience that in those countries in Europe where I have been able to follow legislative works, and where those modern issues have been the subject of discussion, we have always found one basic consideration which is attached to any situation where the Berne Convention enters into discussion and that is that the Berne Convention gives individual rights. There is no way to construe the Convention to mean, except when it explicitly allows it as in Article 2.4, that a collectivity, state or organization, shall have the rights at the outset for all authors of a given category or for all works of a given media. It is basically not a social convention. It does not give social rights and I stress this because I come from a country known for its, let us say, "collective approaches" to things. Collective approaches, where they can be found in my country, as in the Nordic countries are based upon the individuality of the rights (being the rights of individuals) who may have transferred their rights to others and are the ones profiting from the collective arrangements which may be at hand or which may have been established with a view to future developments. Modern uses crave for collective solutions and I believe that one of the big issues for development internationally of the law about high technology in new media is how the collective means can be applied and the discussion about it occurs internationally right now. It has admittedly been with us for reprography, and for some other uses, but I believe that it is something that will come. The Berne Convention does not say one word about all these things. But it would be most fruitful if all countries which are affected by modern development of technology and media were to take their part in the discussion within the context of the Berne Convention because that is one outstanding way of making discussions fruitful and preventing misunderstanding. I should also like to add one thing about the Berne Convention in this relation, in particular, that is about the compulsory licenses. There are provisions in the Berne Convention making it possible for compulsory licenses. Compulsory licenses are very blunt instruments. Usually they are used in the very most blunt way. The Berne Convention does not say how a compulsory license should be made, applied or handled but I believe that there are, I know that there are, approaches on how to handle the needs where compulsory licenses usually come in as a kind of first hand instrument in discussions which are not as blunt as the compulsory license in its usually used form. We may, for instance, weaken it at times, under circumstances in certain fields, just by prescribing that the one who wants to use a compulsory license would have the right of having based his claim on it only if he first gave notice to an organization which can list the uses and then cash in or not the amounts set by the appropriate body. That is just one example. There are other things which we could tell you about in that respect too. The Berne Convention does not constrain any freedom with regard to the fields of high technology and the new media, to my view. If there is a matter of freedom it regards widening the scope of protection. You must not go under the Berne limit but you are free to do whatever to enhance the protection. It does not block any endeavour to create special conventions. You have the examples already set within the satellite field, the phonogram field, etc. The Berne Convention is open to new subject matter by being as imprecise as I indicated to you initially, the only criteria being literary and artistic works. One country considers something to be a literary and an artistic works and another country does not, then, if you are in the Berne Union with both these countries, the one who does not, seeks protection in the first mentioned country and the other not in the second mentioned but then there is an open question. How one would discuss this to the pleasure of all affected. This discussion could better take place in the body where both belong rather than in a kind of system where no-one really knows who is speaking for whom. There has been a discussion about new media in terms of what originality criteria may apply. The Berne Convention does not say anything about the content of an originality criteria. If you want to start your way, the U.S. way, by just looking backwards with your originality thoughts and not forwards, then you just say copied or not copied. You may do that. That is roughly put, but I explain this way because I am short of time. I imagine the U.S. court's role in this: if the court wants to be impressed by what we are doing in Europe, that is nice. If we are impressed by what you do in the U.S., that is nice. But we should, then, be able to do that both ways, and we should learn not to be afraid of doing that both ways. That is an educational thing. I do not believe those who say that there is a threat by adhering to the Berne Convention of a kind of influx of ideas which might go the wrong way from an American perspective, who have a very good standing in the future development of this field of law. It is a matter of taking and giving influences from a wider market and these rights, may be given by God or by whomever, they are the rights of the market and the market is not your market, the market is the world market. If you want to fight piracy, of course you must be representative of the standards you stand for and I find that this is an issue which really stands out from all the discussions I have read about earlier as one of the major ones related to this piracy issue. You must raise your standard of "believability," You will want to set an example by joining Berne. You are presently buying international protection for payment in aid and trade. That is your world situation in discussing with Korea, Singapore, Turkey and others. In some of these countries, high technology is looked upon as an asset in their improper use of it. If you want to change that, set the example. Thank you, Mr. Chairman. Mr. KASTENMEIER. Thank you Professor Karnell. Next the chair would like to call upon Monsieur Jean-Louis Comte. Monsieur COMTE. Mr. Chairman Kastenmeier, Honorable representatives, Director General, Ladies and Gentlemen, let me first thank you for the invitation and for the opportunity to express some personal views on the Berne Convention. The topic "the Berne Convention and high technology" has basically two aspects. One concerns the subject matter of the protection-the catalogue of protected works-and the other the rights granted, that is, the rights conferred to authors. Concerning the first aspect, I would like to make two preliminary remarks. First from the copyright point of view, the use of high technology to create a work of literature or art does not give rise to any problems. Whether a piece of music is composed or improvised with the aid of a computer or whether CAD-computer aided design-is used for the drawing of an architectural work, the result remains the same: a work protected by copyright and therefore also by the |