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FÉDÉRATION EUROPÉENNE DES RÉALISATEURS DE L'AUDIOVISUEL
EUROPEAN FEDERATION OF AUDIOVISUAL FILMMAKERS

VERBAND EUROPÄISCHER FILMREGISSEURE

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FERA

Secrétariat général
FERA

Avenue Everard 55
B - 1190 Bruxelles
Tél. (02) 345 74 78

Compte en banque

Banque Bruxelles-Lambert compte no 310-0568500-69

France

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Italie

RFA

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Pays-Bas

Portugal

A N. A. C.
GENOOTSCHAP VAN NEDERLANDSE SPEELFILMMAKERS
ASSOCIACÃO PORTUGUESE DOS REALIZADORES DE FILMES
ASSOCIACAO DE REALIZADORES DE TELEVISÃO Portugal
A. D. I . R. C. E.

Espagne

COL-LEGI DE DIRECTORS DE CINEMA DE CATALUNYA

VERBAND SCHWEIZERISCHER FILMGESTALTER

VERBAND DER FILMREGISSEURE OSTERREICHS

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Suisse

Autriche

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ASSOCIATION BELGE DES AUTEURS DE FILMS ET DE TELEVISION
BELGISCHE VERENIGING VAN FILM EN TELEVISIE AUTEURS - België

Columbia University in the City of New York | New York, N. Y. 10027

SCHOOL OF LAW

435 West 116th Street

March 1, 1988

The Hon. Robert W. Kastenmeier

Chairman, Subcommittee on Courts, Civil

Liberties and the Administration of Justice

Committee on the Judiciary

U.S. House of Representatives

2328 Rayburn House Office Building

Washington, D.C. 20515

Dear Representative Kastenmeier:

I am Nash Professor of Law at Columbia University School of Law in New York City. I teach copyright and related law, and direct Columbia Law School's Center for Law and the Arts. I am a Board Member of Volunteer Lawyers for the Arts, the American Symphony Orchestra League and other arts organizations.

In writing this letter, however, I do not represent any organization. I write only for myself to urge U.S. adherence to Berne, having testified on this question earlier before the Senate Subcommittee1. I might add that after living three years in France and with publishing experience in both the United States and the United Kingdom, I have some first-hand experience with Berne country practices as well as with foreign and domestic publishing realities.

I am most grateful to you (whose great role in the 1976 revision entitles you to be regarded as the reigning long-term "Expert in Copyright" in this Congress) for the opportunity to file a statement on your proposed bill H.R. 1623 calling for U.S. adherence to Berne, which is surely one of the most important U.S. legislative proposals before Congress at this time in the field of authors' rights.

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Let me say at the outset that I am strongly in favor of U.S. adherence to Berne and generally in accord with the views expressed on this and other subjects in the memoranda of the National Committee for the Berne Convention.

1 See Hearings on U.S. Adherence to the Berne Convention before the Subcomm. on Patents, Copyrights & Trademarks of the Senate Comm. on the Judiciary, 99th Cong., 2d Sess. 164-195 (1986).

2See National Committee for the Berne Convention, Why the United States Should Join the Berne Convention (July 2, 1987), and Statement to Subcomm. on Courts, Civil Liberties & the Administration of Justice, Comm. on the Judiciary, U.S. House of Representatives, re: Provisions on

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joining Berne have been fully stated by others

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The reasons for my strong belief in the advisability of our the NCBC and its chairman Irwin Karp, Esq., and the former Register of Copyrights, the Honorable Barbara Ringer as well as by myself, and I do not feel it necessary to do more than enumerate some of the main ones briefly:

1) Berne represents an evolving body of the best legal thought in developed, and in many developing, countries as to what authors' rights should, as a minimum, embrace. It is vital that the U.S. have a role and voice in the evolution of this premier copyright treaty, especially in a time of rapid technological change and global development that are forcing us to reexamine the aims and methods of protecting authors' rights domestically and internationally. We have distanced ourselves from UNESCO and thus in some measure from the U.C.C. to which we adhere. Thus it is more crucial than ever that the U.S. as a major exporter and importer of intellectual property be an active participant in shaping or interpreting Berne, the most influential international copyright agreement. It is time we recognized, as Senator Leahy has said (100th Congress, 1st Session, May 29, 1987, Cong. Rec. 57369) that "vital American interests can be fully represented only if we get off the sidelines and onto the playing field by joining the Berne Convention".

2) Through the UCC's "national treatment" provisions and the uncertain "backdoor" (via simultaneous publication) to Berne we have been receiving the benefits of Berne without shouldering the burdens of membership, negotiation, and decision-making, and in many cases denying Berne benefits to our own and other authors. This is patently unfair.

3) At little or no cost, and with little or no change in our copyright laws that would impair proper interests of U.S. copyright users, we can join Berne and avoid the real possibility of retaliation against us by Berne countries (see Berne Article 6, par. 1) as a result of our taking Berne's benefits but not its burdens.

4) If we adhere, we gain co-Berne status with more than 20 nations (which are not members of the UCC but are or may be consumers of U.S. films and other U.S. copyrighted material).

5) Berne membership would be an aid to collaborative efforts to stem widespread piracy. It seems very dubious that other GATT members who belong to Berne will be eager to collaborate with and give protections to us under that arrangement without our giving them adequate Berne-level

Formalities in Bills to Implement U.S. Adherence to the Berne Convention (Feb. 10, 1988).

3See Hearings on U.S. Adherence to the Berne Convention before the Subcomm. on Patents, Copyrights & Trademarks of the Senate Comm. on the Judiciary, 99th Cong., 1st and 2d Sess. at 50-51, 147-150, 164-167 (1985 and 1986). See, generally, 10 Colum. -VLA J. of Law & the Arts, No. 4 (1986).

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protections. It is scarcely imaginable they would give up hard-won Berne protections in any eventual GATT arrangement or look with favor on our failure adequately to respect Berne standards. The countries or places where piracy reigns are quick, in response to criticism, to point to our own failure to join, and operate through, Berne.

The Kastenmeier and Moorhead bills seem to me to contain excellent provisions on most of the major issues raised by Berne adherence. You, Representative Moorhead and your staffs are to be congratulated on your foresight and skill.

First, the so-called jukebox provisions in §8 seem judicious and adequate. I believe, however, that provisions of the Leahy bill (S.1301) which are comparable to the Kastenmeier proposal may be found to offer some additional, useful ideas. In the end, the willingness of the affected interests performing rights organizations and juke-box operators to agree to these Berne-compatible arrangements would seem the critical factor, but there does not appear to be any reason to think that agreement cannot be reached.

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Second, on notice formalities the Kastenmeier bill seems generally well conceived, as do its provisions on works in the public domain. In Section 14, on the Copyright Royalty Tribunal, I would prefer (in line 5) some such formula as "due consideration" to "substantial deference." The latter may have more of a "freezing effect," unresponsive to inflation or marketing developments, than our experience with some 60 years of $.02 mechanical royalties should lead us to desire.

On only two matters would I urge, in the strongest possible terms, that modifications be made in the Kastenmeier bill. These are (a) revision of our treatment of registration and recordation and their effect on copyright validity and on enforcement suits and remedies and (b) elimination of the provisions on moral rights which I believe are unnecessary for adherence to Berne and might unjustifiably harm the cause of adherence and which, if adopted, would seem unsatisfactory for both proponents and opponents of moral rights. I am told, and pleased to hear, you are now of the view that the moral rights provision should be dropped.

REGISTRATION AND RECORDATION

I do not believe we can in good conscience consider as

"adequate" under Berne the §411 provision in the 1976 Act that registration must precede suit for infringement. The "copyright without a remedy" thus envisaged in the present law is meaningless. Registration is more than adequately compelled by §§412 and 410(c) and by various advantages accruing therefrom.

If claimants were required to register published works, at any time and without penalty, before suing, that might be a possible compromise but, like §411, it could invite retaliation that could injure dissemination of U.S. works abroad.

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2. Deposit of copies of works with the Library of Congress has a public benefit purpose. Deposit can be adequately assured, I believe, by the reasonable monetary penalties provided for that do not affect enforceability of rights.

MORAL RIGHTS

As the moral rights provision is to be eliminated, I will merely reiterate my support for this step. I do believe we now qualify for Berne on moral rights with our law as it is evolving. Adherence legislation should leave existing U.S. law and legal processes untouched, and not "freeze" them in this area. A "freeze" would indeed raise questions of good faith in our Berne compliance. It would tie the hands of our courts, hampering their efforts to do justice in future cases in new, changing, and often unforeseeable, circumstances. In sum, Berne adherence, with only such revisions as are essential to secure it, is the paramount task for today, as you have so well understood.

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