BERNE CONVENTION IMPLEMENTATION ACT OF

1987

WEDNESDAY, SEPTEMBER 30, 1987

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES

AND THE ADMINISTRATION OF JUSTICE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to call, at 10 a.m., in Room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Synar, Schroeder, Berman, Cardin, Moorhead, Lungren, DeWine, and Coble.

Staff present: Michael J. Remington, chief counsel; David W. Beier, counsel; Virginia E. Sloan, counsel; Thomas E. Mooney, associate counsel; Joseph V. Wolfe, associate counsel; and Audrey K. Marcus, clerk.

Mr. KASTENMEIER. The committee will come to order.

Mr. MOORHEAD. Mr. Chairman.

Mr. KASTENMEIER. The gentleman from California.

Mr. MOORHEAD. I ask unanimous consent that the subcommittee permit the meeting to be covered in whole or in part by television broadcast, radio broadcast and/or still photography pursuant to rule 5.

Mr. KASTENMEIER. Without objection.

This is the second day of the committee's hearing on the subject of moral rights with respect to the adherence to the Berne Convention.

On September 15th we heard from witnesses representing the motion picture industry and IBM, both of whom testified that adherence to Berne would be consistent with this country's leadership on intellectual property and trade issues, and that the current law on moral nights issues is sufficient to enable us to adhere.

We also heard from representatives of magazine and other publishers who testified that adherence is unnecessary, in fact, harmful to the interest of the United States and industries affected by it.

It was principally their opposition to the Berne moral rights provision, whether or not we deem current law sufficient for adherence, that led them to oppose adherence.

Today we will hear from quite another position with respect to this controversy. We will hear first from a panel of artists who are (405)

intimately involved with the creative process and who are vitally interested in Berne's moral rights requirements.

Second, we will hear from a law professor who is a leading advocate for moral rights law. As always, we are quite interested in the varying points of view that relate to the subject.

We believe this will serve to illuminate the important issues underlying adherence to Berne and educate us about the critical decisions that we must make in the near future within the context of the Berne and possibly outside of it, for their are other issues, other applications of these principles that may be affected whether or not we adhere to Berne.

Does my colleague have any opening statement?

Mr. MOORHEAD. No, Mr. Chairman, except to welcome our witnesses today and tell them that we all look forward to continuing these hearings that we have been involved with for some time now and learn as much about the area as we can.

We want to do that which is in the best interest of our country which includes protecting the rights of Americans in the copyright area. This is one of the fields that we have really surpassed many other parts of the world in. Our balance of trade has been good in the area of innovation, and writings, and motion pictures and many other similar items that we export abroad.

We want to go forward and protect them as much as possible, so we are interested in your viewpoint on this.

Mr. KASTENMEIER. I know you join me in welcoming to the subcommittee four distinguished artists who will testify as a panel.

The first is Sydney Pollack, the director of such well known award winning firms as, "The Way We Were"; "Out of Africa"; "Tootsie."

Mr. Pollack is appearing on behalf of the Director's Guild of America.

Second, Mr. Frank Pierson, with whose work we are, I think also very familiar. He won an Oscar for his screen play for "Dog Day Afternoon" and also wrote such acclaimed films as "Cool-hand Luke" and "Cat Ballou."

Mr. Pierson is appearing on behalf of the Writer's Guild of America.

Another witness is William A. Smith, a very distinguished painter and printmaker whose work has been displayed in virtually every museum in this country and certainly many abroad.

Also, we have another distinguished director who will want to make a contribution, I am sure, Mr. Elliott Silverstein, who has also directed some distinguished work and presumably collaborated with Mr. Pierson in terms of Mr. Pierson's writing "Cat Ballou," among other notable-many notable films he has directed.

In any event, we are delighted to have you and we will start with whomever you would like.

I guess we will start with Mr. Sydney Pollack.

TESTIMOMY OF SYDNEY POLLACK, ON BEHALF OF THE DIRECTORS' GUILD OF AMERICA; FRANK PIERSON, ON BEHALF OF WRITERS GUILD OF AMERICA; WILLIAM SMITH, ACADEMICIAN OF THE NATIONAL ACADEMY OF DESIGN

Mr. POLLACK. Good morning, Mr. Chairman, and Members of the Subcommittee.

I would like, if I may, to submit a official written statement by the Directors' Guild for the record, and then, if I may, I have a very brief oral statement on behalf of myself as a freelance motion picture director and a member of the guild.

Mr. KASTENMEIER. Without objection the 13-page statement in behalf of the Directors' Guild of America will be accepted for the record and you may proceed as you wish.

Mr. POLLACK. Obviously, I am not a lawyer or a copyright expert. I am very grateful to have this opportunity to testify before the subcommittee to express my own very strong support for United States adherence to the Berne Convention.

I think just as an individual, as I hope you do, that the U.S. ought to be a part of Berne because, among other things, Berne is the international copyright treaty of real repute.

If as American's we want the United States to exert any kind of real leadership in the copyright debates, then I think we must make credible our position in the international forum. I think as I hope you all do, that the United States ought to be a part of the Berne, because as a leader, as an exporter of some of the best and most influential music, literature, graphic art, motion pictures and software, we surely ought to be entitled to the same protection as the artists and originators of other member countries.

After all, our art, and our software, our music and our literature, and motion pictures are as high or higher quality as anyone else's, and I think they ought to be just as protectable. How do we assume leadership without granting those artists and originators in other countries at least as much protection in the United States for their work as they enjoy in their own country and other countries belonging to Berne.

The debate before this committee is whether to grant artists the right to protect their works and their reputations. Fundamentally, this is a debate about the value society places on the integrity of artistic endeavors.

For the record, Webster's defines integrity "as entire or untouched, an uncompromising adherence to a code of moral artistic or other values; the quality or state of being complete or undivided."

Our Constitution grants to the individual the right to have his writings protected, and the purpose clearly is to motivate the artists to create, to encourage creativity, if you will, but because our society is economic based that protection has been translated primarily into economics, protection for the financiers and propri

etors.

Part of that is good; business needs to be protected but, surely now that is not the whole intention. Surely the underlying foundation for that law, like most others in the Constitution, is in the

spirit of the individual as well, that individual creativity should be equally rewarded by protection.

It seems to me the United States ought to be a signatory to Berne just to make those statements of artistic support, but compliance with Berne, would be an empty gesture unless Congress clearly articulates a proper standard of protection for creators. We don't have that now.

Berne's goals are twofold; the protection of economic rights and the protection of the individual's artistic rights. The treaty, without a moral clause would be a treaty with no teeth, a treaty telling us to do something and giving us no tools with which to do it.

To give a copyright holder or proprietor the protection and not assure clear and definite protection of the artists reputation is an obvious violation of the spirit of Berne. This treaty did, after all, grow out of a literary conference in 1974, chaired by Victor Hugo. You have heard testimony to the fact that currently the United States law is sufficient to protect the artists. It simply isn't.

You have also heard that the defamation law and certain statutes protect the artists; and they do not. With the exception of extreme cases of blatant and outrageous misrepresentations, there is almost no consistent across the board protection in the United States against the alteration or mutilation of an artists work.

If I am a sculptor commissioned to do a work by you, by a committee, by a building, and they hire another sculptor later to alter or change my work, or they change it themselves, except for seven states among our 50, I have no where to go to ask for protection, and even in those seven states, it is highly debatable that I would receive any.

If I am author of a book who for whatever reason wishes to remain anonymous and the publisher publishes my name, there is no statute anywhere that protects me.

If I direct a motion picture and the studio that distributes it wishes after it is released to reselect and change the background music, to rearrange the scene, to put the beginning at the end and the end at the beginning, to cut sections of the picture or to tint it all blue or pink, I have no legal redress whatsoever.

These rights have all been signed away in the employment contract. Since the contents of all motion pictures artists contracts contain clauses signing away the artists copyright to the studios the very clear inference is sign it away or you don't work.

Let's be clear about this. The people who tell you that current U.S. law is sufficient are really saying, look, we kind of understand that U.S. law doesn't really go very far in protecting artists.

What we really want is that half a billion dollars of pirated motion picture money back. That is getting taken away from us and we ought to have protection against it, but let's not get involved in the area of moral rights because they would take some control out of our hands vis-a-vis the artists.

This hearing is on the Berne treaty. It has at the heart of it the spirit of redress for damage done to an artist's reputation.

We can't talk about Berne and not talk about moral rights. In the approximately 100 years, give or take a few, since it is inception, most of our allies have adhered to Berne. The reason we haven't is because of the focus of our copyright law on economic