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law-and I know our courts ultimately make a decision-but are we going to consult with WIPO in terms of whether they think what we propose is Berne compatible?

Mr. OMAN. Well, I think they are experts on the treaty and we certainly would want to weigh their opinions in terms of what you are proposing to do. I would think that would just be sound legislative procedure.

The Chinese example is not entirely on point. They have been consulting very closely with WIPO in terms of drafting the basic provisions of their copyright law. And they don't have 200 years of experience in the copyright area as we do.

We are starting at a place much further along on the road than the Chinese were. And I think that at this point, we have a pretty clear idea of what's required, what our law requires, and that we could proceed with much more confidence in the subject of reform than could those who are operating without that long tradition or background.

Mr. KASTENMEIER. Ms. Schrader indicated that we need not be concerned because, after all-I think she was responding to Mr. Moorhead-Berne is much more pro-creator, pro-author, pro-proprietor, I add the last one.

Does that mean that users better be beware in this country of adherence to Berne?

Mr. OMAN. Your premise is one that I would like to have clarified.

Initially, it's more pro-proprietor, more pro-author than what, the UCC perhaps, because the standards are higher.

But, in terms of U.S. law, U.S. law is very close to meeting the standards of Berne. So, Berne is not a great deal more pro-author, pro-proprietor than current U.S. law.

With that caveat, let me mention the users again. They have all the usual protections that they have under U.S. law. They have a right to fair use. They have the right to report the news and to use portions of work for academic scholarly purposes.

I hope that you will ask the users at some point to testify, and they will, I am sure, have no reluctance to speak out on how their interests will be affected.

Developing countries, I suppose, are generally user countries. They are users in a very broad sense. And they may invoke special provisions in the nature of limited statutory licenses which some people call compulsory licenses. And that is a brake on the rights of the authors and proprietors

Mr. KASTENMEIER. But generally is it the case that compulsory licenses are frowned on, I gather, by Berne, but some other form of "statutory" license is not?

Mr. OMAN. Well, compulsory licenses are permitted in several of the areas that we have entered, of one year regulating a monopoly is the only effective way to regulate that monopoly. And cable television area is one of them.

Mr. KASTENMEIER. Ms. Schrader, would you like to comment on that?

Ms. SCHRADER. Well, I might add that I think the attempt in Berne, and especially in Europe, has been to emphasize voluntary negotiations. And, of course, they, to some extent, have more orga

nizations to represent the respective interests, author organizations, producer organizations. So there is somewhat more of a tendency to bargain collectively through these organizations and, in this way, achieve negotiated agreements perhaps within a general framework of a statute, but the emphasis is on the negotiations. And so you don't have to resort to a tribunal to actually set the rates, a public tribunal.

So it's a concept that is sometimes referred to as agreed licensing, and the rates are set, if at all, by the government only as a last resort.

Mr. KASTENMEIER. Very quickly. I said, I did not want to beat the subject of moral rights to death here. But I take it it is your view that Berne implementing legislation does need to have a moral rights section or does it not?

Mr. OMAN. Well, I think it's extremely important that your bill has a moral rights provision because we will build a legislative record as to what is permissible under U.S. law and what is not permissible.

If your bill were silent on the issue of moral rights, the courts would have no guidance in terms of how to limit it, how to apply it. And presumably the arguments could be made in court that because you are silent on it, the full panoply of moral rights that adhere in France would adhere in this country.

And I'm sure that's not what we want to happen in this country. The fact that moral rights do have substantial significance in many vital industries suggest that this should be crystal clear, that there should be no doubt as to exactly what moral rights Congress is willing to approve.

Even if you ultimately drop the moral rights provision, that in itself would be clear guidance to the courts as to what Congress intended. And if you intended to rely on the existing moral rights available under state law, under the Lanham Act, that too would be made clear in legislative history.

So I'm not certain as to what the final outcome should be, but I think the fact that you have a moral rights provision in your bill is extremely important.

Mr. KASTENMEIER. Well, at the same time, I am concerned that what I perceive to be a number of American interests-particularly magazine publishers, and other publishers who are not so much interested in the world market as the domestic market-who are apparently worried about what moral rights might mean in terms of their own publishing interest in this country, and have already evinced reservations about Berne. And I think deriving largely from that point, that Berne doesn't really do them any particular good. This argument calls in to question some of their own practices with respect to ownership of articles that are authored by others perhaps and, therefore, I think they may have some reservations. But that's something, you know, that we will have to deal with in the future.

Mr. OMAN. It's my view that you could draft a provision that would ease their concerns and come up with a provision that would be something they could live with.

Mr. KASTENMEIER. The Committee is very indebted to both of you for your appearance here today. You've been very patient with our

questions, and we look forward to your assistance in the future on this question and on other questions.

Thank you both.

Our last witness today is Professor Ray Patterson, Pope Brock Professor of Law, School of Law, University of Georgia.

Prior to teaching at the University of Georgia, Professor Patterson was a long time dean and professor at Emory University School of Law. In addition to teaching legal ethics, he has been a student of copyright law for almost three decades. He is author of an excellent book entitled "Copyright in Historical Perspective." He has previously testified before the Subcommittee on the important issue of copyright protection for semi-conductor chip products. Professor Patterson, we have a copy of your statement. We are delighted to have you here, and you may proceed as you wish. STATEMENT OF L. RAY PATTERSON, POPE BROCK PROFESSOR OF LAW, UNIVERSITY OF GEORGIA

Mr. PATTERSON. Mr. Chairman, thank you very much. I very much appreciate the opportunity to present to the Subcommittee my views on the adherence of the United States to the Berne Convention. But I would like to impose a caveat.

I am not an expert on the Berne Convention, and I do not propose to comment on such matters as notice, deposit and registration, as I do not feel that I have anything to contribute. I do believe, however, that I have a useful perspective top offer on the bill under consideration by reason of my work in history and theory of American copyright law.

Because I consider myself primarily a theoretician, my comments are intended to be analytical rather than judgmental.

The first thing that impresses me is that the question of adherence to Berne represents a clash of competing theories of copyright. American copyright is the grant of a limited statutory monopoly. Berne envisions copyright as a natural right of the author.

In considering Berne, there are four points that we need to keep in mind. The first point is that copyright law protects the copyright owner, not the author. The time has come for us to dispose of the fiction that the author is the primary beneficiary of copyright. The author is only an incidental beneficiary of copyright law.

The second point is that American copyright law has a constitutional basis, and the constitutional restraints on the power of Congress to enact copyright legislation come into play in considering amendments for the purpose of adhering to Berne.

The third point is that copyright is a law of communication which allocate rights in and to the use of ideas expressed in a tangible medium of expression. And, therefore, copyright implicates free speech rights.

And the fourth point is that copyright must serve the interests of three groups: the author, the entrepreneur or the publisher, and the consumer or the user.

The essential problem that we have here is that of balancing the interests of these three groups. The author's interest is manifested in the Moral Rights Doctrine. And, of course, the Moral Rights Doctrine is foreign to American copyright law. It's an integral part

of copyright law in the civil law countries and is reflected in the Berne Convention.

I looked at the amendment proposed in H.R. 1623 concerning moral rights, and I must confess that I do not think that that amendment will provide any effective protection for the author's moral rights. It gives the author moral rights in one section, and it takes them away in another section.

I say that because it makes the moral rights alienable. And if my study of the copyright history is correct, any time the author has an alienable right, the publisher is going to take it, primarily because of the disparity between the bargaining positions of the two parties.

My purpose here is simply to point out that Congress should not be misled into thinking that the proposed amendments will protect the author's moral rights.

The consumer's interest is manifested in the Fair Use Doctrine. With all due respect, I must disagree with Mr. Oman that our Fair Use Doctrine is adequate for the purposes of protecting the consumer. And I find it somewhat paradoxical that the Berne Convention does a better job in protecting the consumer in terms of fair use than Section 107 of our Copyright Act.

This is very important because fair use is the key for balancing the interest of the copyright owner and the consumer. We have free speech implications here because one thing we should not forget is that the constitutional purpose of copyright is the promotion of learning.

The Fair Use Doctrine should ensure that the consumer or the user has access to the copyrighted work in order to gain learning. Under the present copyright doctrine, the Fair Use Doctrine, by no means, provides that assurance. I should point out that this is a fairly recent problem by reason of provisions in the 1976 Copyright Act, and the application of copyright to the electronic media.

Prior to the 1976 Copyright Act, with one minor exception, publication was a condition or statutory copyright. Once a work was published, the public was ensured the right of access.

Under the 1976 Copyright Act, publication is no longer required for copyright. And, therefore, in the case of material produced by electronic media, there is no assurance whatsoever, that the public shall have proper access to that material.

The courts have consistently said that the Fair Use Doctrine is the most troublesome doctrine in the whole law of copyright. I think that Congress would do well to take a cue from the Berne Convention and would do the judiciary a great service in clarifying the Fair Use Doctrine. To that end I have suggested some amendments which are attached as an appendix to my formal statement which the Subcommittee may wish to consider.

I would like to make one final point. As I understand it, there has been a suggestion that Congress take a minimalist approach to amending Title 17 for the purpose of adherence to the Berne Convention. I think this would be a very serious mistake because I think Congress should consider the problem fully and in terms of the overall problem of reconciling two competing theories of copyright.

Otherwise, we may find the American theory of copyright unwittingly sacrificed on the altar of expedience. That would be a grave mistake.

That completes the summary of my formal statement, Mr. Chairman, and I would be happy to try to answer any questions that the members of the Committee may have.

[The statement of Mr. Patterson follows:]

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