from Stephen Stewart of the United Kingdom, and the other from Meyer Gabay of Israel.

I haven't heard a peep from people from the continental countries, where the natural right tradition is strong and the author's right tradition is strong.

Mr. KASTENMEIER. Thank you.

Are there further questions of Professor Goldstein? If not, we are once again indebted to you for your contribution here today, on this concluding day of deliberations on Berne. Thank you.

Mr. GOLDSTEIN. Thank you.

Mr. KASTENMEIER. Next I would like to greet an old friend, not only personally but certainly of this committee. I won't even speculate on how many years we have known Barbara Ringer, who has served as Register of Copyrights from 1973 to 1980, who most everyone in this room knows well. She served as Register during the time period leading to the enactment of the historic Reform Act of 1976, and then the implementation of that Act in 1978 occurred under Barbara Ringer's watch.

As a matter of fact, her contributions really, in terms of the 1976 law, go way back into the sixties, when under Mr. Kaminstein she was an Assistant Register and assisted the committee, I must say, in all its crucial deliberations for the entire period.

In any event, above all, she is aware that as a result of the 1976 law and other things, the disappearance of the manufacturing clause, the fact that we are no further involved in compulsory licenses than we currently are, have made it possible for us realistically, in principle and otherwise, to consider this adherence at the moment. So we are delighted and fortunate to have before us for her comments, Ms. Barbara Ringer.

TESTIMONY OF BARBARA RINGER, FORMER DIRECTOR, COPYRIGHT DIVISION, UNESCO; FORMER REGISTER OF COPYRIGHTS; AND ASSISTANT LIBRARIAN OF CONGRESS FOR COPYRIGHT SERVICES

Ms. RINGER. Thank you very much, Mr. Chairman. I do appreciate those personal remarks more than I can say. I am honored to be included among the witnesses on this last day of your hearings on U.S. adherence to the Berne Convention.

The word "historic", which you just used, is thrown around a lot these days, but I think it does apply to the Act of 1976, and I think it applies equally to Berne adherence. I think it is a very apt term for the series of hearings that you have held. When we look back on the various benchmarks in U.S. copyright history, I am sure that this is going to be one of them.

I have read through the statements that have been submitted to these hearings and I am impressed with their quality and their basic good temper. It is rewarding to read things that address problems substantively rather than in terms of emotion and vituperation, which you're all too familiar with.

I have no intention of covering points that you have heard discussed time and time again. I am here primarily to answer questions. But I do have a few things I would like to say first. Mainly I'd like to declare that I do support U.S. adherence to the Berne

Convention with all my heart and soul, if you will forgive me for using terms like those. This really means a lot to me.

My only regret-and I appreciate your mentioning him by name, Mr. Chairman-is that Mr. Kaminstein, who was my predecessor and mentor in the Copyright Office, isn't here to see this. He had two goals in his career. One was revision of the copyright law, and the other one was to get the U.S. into Berne. He saw one of them, but he didn't see the other one. But maybe it will come in my lifetime.

I do have some experience in the international area that I think might be of some value to your committee. I have represented the United States in what seemed at the time like an endless series of international conferences. And I did serve as Director of the Copyright Division of UNESCO for two years, so I have that perspective, too.

Let me tell you: the honor of the United States means a lot to me in the international copyright field. Somebody needed to say it, and I am gratified to see that Professor Goldstein did refer to the ethics, the principle that's involved here. This does involve a lot more than dollars and cents. The United States has been wrong for almost a century in this field. I think we have been in the wrong consistently, and I think that adherence to the Berne Convention is called for just simply because it's the right thing to do. I think, if I were again representing the United States, I would be able to hold my head higher in international fora if we were a member of the Berne-and that doesn't refer just to Berne meetings but to any meetings.

For me, the important thing that is facing you here is to adhere to Berne, and I would almost put the contents of the implementing legislation on a secondary level. I think if we can get into Berne, it is less important that the bill say this or that. If the Berne adherence can be accomplished, I'm not too worried about what the bills say. I could accept any of the bills that are currently pending.

I do feel, unlike Director-General Bogsch, that legislation is necessary. I think the exploratory process that you have gone through here is a great deal more than an exercise. I think it was necessary, and I feel that legislation needs to come out of it. There are some things in our present law that obviously do conflict with the Berne Convention, and I think that tribute should be paid to the Ad Hoc Working Party for the groundwork they laid here. It has, I think, given us all a solid basis on which to proceed.

You probably could just deposit an instrument and get away with it. Countries have done that that didn't have any copyright law or jurisprudence at all; they just went ahead and did it, and let the chips fall where they may. But I don't think the United States can do that. I think we're too big, we're too much of an exporter in this field, and I think it would be a very cynical and undesirable thing to do.

So I think you do need to consider, in detail, what your implementing legislation is going to contain as you go into markup. As I say in my statement, Mr. Chairman, I am finishing work on an analysis of the various bills pending and I will make some comments and suggestions on them. My comments and suggestions are very technical, and I don't want to bring them into this hearing at

all. But, with your permission, I will submit them within the next two or three weeks for you, if you wish, to use during your markup.

Mr. KASTENMEIER. The committee would appreciate that.

Ms. RINGER. Thank you very much, Mr. Chairman.

Mr. KASTENMEIER. Without objection, we can make them a part of the record as well.

[The information is reprinted as Appendix IV (6).]

Ms. RINGER. In the time I have left I would like to comment on three points involved in the implementing legislation. They are moral right, architectural works, and formalities. I don't think I would add much to the jukebox issue, although I gather that still is on the table.

On the moral right, I regret to say that I differ with Professor Goldstein, with whom I agree on practically everything else. I don't think the implementing legislation should address the problem at all. I think that we are now as much in compliance with Berne on the moral right issue as we need to be, and I think that it might be a mistake to try to include a provision.

I think the point Professor Goldstein made about the confusion that exists under the present law, admitting that there is some moral right floating around out there, is a good one. I think the law is in evolution-the common law, state statutes, and the Lanham Act. I think the combination of those things leaves considerable doubt in individual cases about what a court will decide.

But it does seem to me that the Federal copyright law, if it were amended to include moral rights provisions, would simply add to that confusion. I don't think that it is such a terrible thing to have the law in this area evolving as it is now. What I am concerned about is the danger that, under the preemption provisions of section 301 of the statute, you may inadvertently cut off common law or state statutory rights in other areas that you don't intend to.

It is very fuzzy, the line between copyright qua copyright and this bundle of personal rights that are sometimes called moral rights. There are clearly some moral rights under the present copyright law that the author has and can bargain away. By enacting specific legislation that includes limits on what you can claim under the present copyright law, you would have to draft the legislation very, very carefully to avoid a preemption, or at least to avoid the argument that your legislation had preempted other rights that could exist concurrently.

My own feeling, to use the time-honored expression, is that that particular "can of worms" should not be opened. I don't think you need to open it. I think it would be a mistake to do so because I think it could actually impair the healthy evolution of rights that might eventually lead to legislation, but then again might not. Maybe the ultimate decision would be not to address the problem at all.

I do feel that protection for moral rights is a real problem that is not going to go away. It is one of several problems that will have to be addressed as the century progresses. But I just don't see the need for dealing with it here, and it seems to me that it would be consistent with the minimalist approach that you have been taking not to address it at all.

I will be glad to answer questions on this, Mr. Chairman, but my preference would be to leave out any mention of moral rights at all.

On the architectural work question, I am uneasy. I have been all along. I hesitate to differ with the Ad Hoc Working Committee's conclusions that this issue does require legislation, but I'm not at all sure that it does. Basically, I agree with Professor Goldstein's comments on this point. It seems to me that you haven't really gone through the sifting and refining process on this issue that you need to in order to develop comprehensive legislation.

The legislation that is pending is pretty comprehensive, but it doesn't seem to have attracted enough comment. We don't really seem to know enough about what the actual consequences would be. It's a good attempt, don't get me wrong. I admire the drafting. But the broad scope of the provisions worry me and I don't really think they are necessary. My feeling would be to rely on the copyright-ability of pictorial, graphic, and sculptural works as including architectural works. I think they do. I think that architectural works are now being registered in the Copyright Office. The amount of protection that they're given is not clear, but I don't think it has to be under Berne, and I think that the timing is wrong for this. As you know better than anyone else, Mr. Chairman, timing is all-important in this area. I just don't think the timing is right for definitive architectural work legislation.

Finally, on formalities, I am really very glad to see that copyright notice seems to be on the sunset trail. It's high time. But registration is another matter altogether. It is something I do know about. I started in the Copyright Office as an examiner and I worked with the registration system for many, many years. I think it's something we ought to be proud of rather than defensive about. I know the Europeans just cannot understand why we are clinging to registration so vigorously. But we have something that no other country has and I think it's a real public value. I think Professor Goldstein on this, as on other things, has summed it up very well. You have a dependable public record which I don't think any other country really has. I think it would be a tragic mistake not to preserve it but to destroy it.

Now, obviously, under Berne-and I think this is pretty clear to everybody-you can't have an obligatory registration system. (I'm leaving aside the question of section 411 for the moment.) You can't make registration a condition of the securing of protection or the enjoyment of rights. That means if you're to preserve it, you have got to induce it. You have got to give incentives. The question resolves itself down to what the incentives should be.

I have no problem with section 410, which gives added evidentiary weight to certificates of registration made promptly. I have a little more problem with section 412, simply because I know it works unfairness in some cases. But you need a real inducement for registration and so I am prepared, without any question or qualification-and under the minimalist approach that we're all devoted to-to accept section 412 without change.

I think you're probably going to want to know what I think about the possibility of a two-tier approach at some point, Mr. Chairman-the possibility of applying a formality to Americans

and exempting Berne nationals. But I will wait until you ask me the question. I know the possibility of this kind of compromise is floating around.

The question of section 411 seems to have emerged as an issue. You asked Professor Goldstein about it and he gave a very good answer, I think. You can make an argument that requiring registration as a condition of suit is not a condition of protection and is not even a condition of enjoyment, because it is just another paper you have to file to get into court. The failure to get a certificate does not deprive you of any rights. You can get the certificate on the date you go to court or even after the trial has started, as some courts have allowed.

When I was asked about this initially several years ago, I waffled a little, but I did say yes, I thought that the provision probably should go, that it was probably a condition of copyright. It certainly is perceived that way by some. At the same time, I think the point is arguable. If in your judgment you decide that it is not necessary to change section 411, you could get away with it. Nobody is going to go to war over this.

But I am puzzled, to express a little personal bemusement on this point, as to why the Copyright Office and the Library of Congress seem to think that this is so important. Because, to me, it is really not that much of an inducement to register. I can see 410, and I can especially see 412 as an inducement, but under 411, you don't lose anything if you don't register. And while it may add a little weight on the side of registration rather than not registering, I cannot really see that it would be any kind of deciding factor.

The Library of Congress is going to gain quite a lot out of this bill as it stands, because under the obligatory deposit provisions of section 407 they will not only be able to demand deposit of works published with copyright notice, but after this bill comes into effect they will be able to demand anything published, whether with notice or not. While the practical effect of that might not be huge, it certainly removes a restraint that is now on them. They now have to find a notice on the copies before they can demand.

I guess they're concerned that, because deposit usually accompanies registration, anything that impairs the incentives to register would hurt the deposit system. But I just can't see that section 411 is that important.

Having said that, though, I will mention the "two-tier" approach at this point. I could buy a provision exempting Berne nationals from the 411 requirement as a compromise because I don't think it would make that much difference in practical effect.

Mr. Chairman, let me make one last remark, a little on the personal side. After the general revision bill passed in October 1976, we did take a pretty close look at Berne. It was, in the overall grand scheme of the Copyright Office, the next big mountain to climb (your smile, Mr. Chairman). After some preliminary discussions, a meeting was held in Geneva, in 1978, if I remember, to see how the land lay on both sides of the Atlantic. My impressions then-and they certainly were borne out afterwards-were that the Europeans were very receptive to U.S. adherence. But they were not going to tell us what we had to put in and what we had to take out of the new 1976 law in order to comply with Berne. They