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To the extent it is believed incorrectly that some change in moral rights legislation is required by Berne, a full-blown debate over the scope of moral rights is inevitable. As Senator Leahy puts it, such a debate would be a "contentious distraction." As long as we fail to separate the "moral rights" question from the rest of the Berne issues, I doubt that we will be able to reach a sufficient consensus on adherence to Berne.

Given all this, it may serve to defuse the issue a bit if it is appreciated that, even if Article 6bis were incorrectly interpreted to require a new "right of integrity," it would not cover many of the subjects we commonly think of when we refer loosely to "moral rights." For example, as to "colorization," a strict "right to integrity" would not cover those who, under existing doctrines governing "works for hire," never were copyright owners in the first place. Nor would Article 6bis deal with royalties on subsequent sales of art work. Nor does Article 6bis have anything to say on an author's right of first publication (as it is involved in the recent Ford memoirs and J.D. Salinger cases).

It would be ironic if we were to become embroiled in a "moral rights" debate that serves to derail adherence to Berne when it turns out that Article 6bis affords far less protection than either "moral rights" advocates might hope for or "moral rights" opponents might fear. But because

American law is already compatible with Article 6bis, we can spare ourselves the "contentious distraction" of a debate

over the appropriate scope of moral rights legislation in the United States.

With respect to their respective "moral rights" provisions, the bills currently before this subcommittee present a straightforward choice. For the reasons I have already given, we believe that provisions recognizing moral rights in Sections 7 and 13 (b) and the pertinent portions of Section 9 (a) of the Kastenmeier-Moorhead bill are

unnecessary to bring American law into compliance with Berne. Further, such provisions are undesirable because they tend to elevate the moral rights concerns of some to a potentially critical issue in the context of Berne

adherence.

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For all of these reasons, Mr. Chairman and members of the Subcommittee, IBM strongly supports United States adherence to the Berne Convention. Equally strongly, we believe we should adhere without the enactment of specific moral rights provisions in the enabling legislation. Indeed, we doubt that the needless controversy over such provisions will permit the serious consideration of Berne adherence that it deserves on its own merits.

National Committee for the Berne Convention
July 2, 1987

WHY THE UNITED STATES
SHOULD JOIN

THE BERNE COPYRIGHT CONVENTION

As of September 1, 1987, the following organizations have subscribed to this Statement:

ADAPSO (The Computer Software and Services

Industry Association)

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