5 The decision must be based on a reasoned comparison of the advantages and disadvantages. The disadvantages of Berne adherence will be immediate. The claimed advantages are speculative and remote. Adherence to Berne is not required by our national interest. The Coalition believes that the disadvantages of adherence, particularly those that will arise from the incorporation of the concept of moral rights into U.S. law, outweigh the advantages claimed. II. DISADVANTAGES OF ADHERENCE Previously in these hearings, the Register of Copyrights has identified problems raised by proposed adherence to Berne which require careful study.6 Among them are: (1) the extent to which Berne adherence will constrain the freedom of the United States to modify its domestic copyright law to meet the needs of future technologies or to reconcile the interests of authors, publishers and users of copyrighted works; (2) the effect on existing relationships of retroactive protection of works that are in the public domain and the effect of the denial of such protection on ongoing efforts by the U.S. to obtain retroactive protection for U.S. works in bilateral negotiations; (3) the extent to which Berne may contain self-executing provisions that may override provisions of our copyright law; (4) the requirement that architectural works be protected; and (5) the consistency of Berne with existing U.S. registration and notice requirements. Many of these issues concern the Coalition. However, the subject of overwhelming concern to the members of the Coalition, and the subject of this hearing, is the effect of the introduction of the European concept of "droit moral" into U.S. law. Droit moral, which is translated as the "moral right," comprises several specific 5(...continued) incorporated as an integral part of the U.C.C., provides, in part, that "[w]orks which, according to the Berne Convention, have as their country of origin a country which has withdrawn from the International Union created by the said [Berne] Convention, after January 1, 1951, shall not be protected by the Universal Copyright Convention in the countries of the Berne Union." As Register Oman has stated, "[t]he penalty [for withdrawal from Berne] is denial of U.C.C. protection in Berne countries that belong to the U.C.C." Oman Statement at 9 (emphasis in original). ·6 authors' rights which vary according to different commentators. At least some of these rights are expressly mandated by Article 6 bis of the Berne Convention. That Article requires signatory states to recognize the right of authors "to claim authorship of the work [the "paternity right"] and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation [the "integrity right"]."7 The incompatibility of droit moral with the fundamental theory of U.S. Copyright law, the lack of precision in requirements of the Berne Convention on this point, the potential impact upon the public and upon U.S. copyright industries, and the risk of opening the door to future demands for expansion and elaboration all militate against incorporation of droit moral. of the various bills for Berne-related statutory amendment before the Congress, only H.R. 1623 specifically proposes a Federal moral right. That bill thus affords an opportunity for full consideration of the issue. We welcome that opportunity. 8 A. The Concept of the Moral Right Is Outside The moral right derives from the European civil law tradition that the author of a work is vested with certain natural rights in his creation. Neither the moral right nor 7 Berne Convention for the Protection of Literary and Artistic Works, Paris Act, 1971, Article 6 bis. 8 The Administration bill simply declares the "intent of Congress" that the paternity and integrity right "be satisfied by United States law as it exists on the effective date of this Act whether such rights are recognized under any relevant provision of Federal or State statutes or the common law and such rights shall neither be enlarged or diminished by this Act." Administration Bill, § 2(b)(1). 9 See, e.g. Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 Am. J. Comp. L. (1968) (the moral right "give[s] legal expression to the intimate bond which exists between a literary or artistic work and author's personality."); DaSilva, Droit Moral and (continued...) 70 26770 - 7 its philosophical premise of the natural law has ever been accepted here. The Constitution grants power to Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective writings and Discoveries."10 As Congress recognized in enacting the 1909 Copyright Act and the Supreme Court has recently reaffirmed, copyright "under the terms of the Constitution is not based upon any natural right that the author has in his writings,. but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings."11 The purpose of copyright in the U.S., therefore, is economic--to provide an incentive to create and disseminate works of authorship, or, in the Constitutional word, "writings."12 The concept of a droit moral does not comfortably fit with this purpose. 9(...continued) the Amoral Copyright: A Comparison of Artists' Rights in France and the United States, 28 Bull. Copyright Soc'y U.S.A. 1, 7-8 ("French scholars regard the droit d'auteur as a natural right, deeply rooted in the principles of the French Revolution from which modern French jurisprudence emerged."). 7 11 H.R. Rep. No. 2222, 60th Cong., 2d Sess., (1909), quoted in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 n.10 (1984). Cf. Wheaton v. Peters, 33 U.S. 591, 660-61 (1834) (copyright exists by acts of Congress, not under common law). 12 See, e.g., Sony Corp., 464 U.S. at 429 ("the limited grant [of copyright] is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward. . .."); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) ("BY establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."); Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts'"). The inconsistency of droit moral with U.S. copyright principles has presented an obstacle to Berne adherence since enactment of the Rome text of 1928. Opposition to adherence in 1934 was premised in part on objection to the moral right.13 Opposition in 1939, in substantial part based upon the issue of the moral right, again blocked Berne adherence legislation.14 Later, the Universal Copyright Convention was formed to allow the U.S. to enter into a multilateral copyright treaty because the disparities between Berne and American law were irreconcilable. As the Senate Committee on Foreign Relations observed in its report on the U.C.C. in 1954: [The U.S.] has found it impossible to because it embodied concepts at variance with recognition of copyright without any formalities, the protection of "moral" rights The latter two differences between Berne and U.S. law are no less acute now than in 1954. Nor have claims for recognition of the moral right in the U.S. fared well in our courts. Despite numerous attempts to inject such claims into U.S. copyright jurisprudence through litigation, the courts have adhered to the Hearings 13 See, e.g., International Copyright Union: on S.1928 before Senate Foreign Relations Comm., 72d Cong., 1st Sess. 68-71 (1934) (statement of Edwin P. Kilroe, representing the Motion-Picture Producers of America, Hearings at 69-70) ("A limitation on the right to change the plot, scenes, sequence, and descriptions of the characters in literary works would bring havoc to the film industry.") [hereinafter "Kilroe Statement"]. 14 See Goldman, The History of U.S.A. Copyright Law Revision from 1901 to 1954 (1955) reprinted in Subcomm. on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, Copyright Law Revision, 86th Cong., 1st Sess. 11. 15 Universal Copyright Convention, Report of the Senate Committee on Foreign Relations, S. Exec. Rep. No. 5, 83 Cong., 2d Sess. 3 (1954) (emphasis added). judicially-interpreted Constitutional purpose and, accordingly, have consistently refused to incorporate that concept into U.S. law. 16 In sum then, the adoption of the moral right would represent a basic change in U.S. law, imported from copyright doctrine at variance from that traditionally accepted in the United States. B. The Moral Right Presents a Risk to the Free Flow The members of the Coalition are dedicated to the timely, effective and full dissemination of information and copyrighted works to the public, values at the center of the First Amendment. They have long structured their editorial and business operations on the understanding that the moral right is not a part of our law. The result has been a quality and style of publication unmatched throughout the world. The importation of droit moral would impinge upon the ability of the publishing community to fulfill its crucial function. The precise contours of this threat are apparent upon examination of the interpretation given droit moral under the civil law. In light of the alien nature of droit moral and its long-standing acceptance in Europe, it is likely that advocates of the moral right and the courts faced with moral 16 See e.g., Vargas v. Esquire, Inc., 164 F.2d 522, 526 (7th Cir. 1947) ("The conception of 'moral rights'. has not yet received acceptance in the law of the United States.... [w]hat plaintiff in reality seeks is a change in the law of this country to conform to that of certain other countries. . . . we are not disposed to make any new law in this respect."); Crimi v. Rutgers Presbyterian Church, 194 Misc. 570, 575, 89 N.Y.S.2d 813, 818 (N.Y. Sup. Ct. 1949) (quoting Vargas); Shostakovich v. Twentieth Century-Fox Film Corp., 196 Misc. 67, 70-71, 80 N.Y.S.2d 575, 578-79 (N.Y. Sup. Ct. 1948) ("In the present state of our law the very existence of the right is not clear."), aff'd, 275 A.D. 692, 87 N.Y.S.2d 430 (1949); Geisel v. Poynter Products, Inc., 295 F. Supp. 331, 340 n.5 (S.D.N.Y. 1968) ("the doctrine of moral right is not part of the law in the United States, except insofar as parts of that doctrine exist in our law as specific rights such as copyright, libel, privacy and unfair competition."); cf. Granz v. Harris, 198 F.2d 585, 590-91 (2d Cir. 1952) (declining to accept plaintiff's claim of moral rights violation, but granting relief on other grounds., |