I might observe that whether it's attributable to this factor or not-and perhaps it is not directly attributable- the fact is that American motion pictures are doing very well world-wide and Europeans are not, and part of it has to do with the financing and so forth. So I think there would be considerable restraint about modifying the vesting of a copyright and all that goes with it in a single studio form, as is the U.S. experience, although that question has been raised in a number of contexts in the last year or two.

I would like to yield to the gentleman from Illinois, Mr. Hyde. Mr. HYDE. Thank you.

I perhaps have too simplistic a view of the problem of moral rights, but it seems to me the prominent directors who are most able to insist on this could negotiate their moral rights in the contract, which would either be or not be acceptable to the producer. The less celebrated directors might want to be able to sell their moral rights if, indeed, it's an additional factor. By making them inalienable, you're depriving somebody of a property right that they might otherwise be able to negotiate a decent sum of money

for.

I have often thought, if the moral rights were made inalienable, you could still negotiate a covenant not to sue for money, unless you barred that remedy, too, and then I think you're causing, as you say, serious problems for the industry.

We were told about the marketing of some of these films, how you have to market them differently, the same film in different areas. But I just don't see this as an enormous problem. It surely ought to be one that could be negotiated between the investors and the artists. They need each other desperately and a compromise and common sense ought to prevail. I don't know if we can be helpful in that or not, lacking both the spirit of compromise and

common sense.

Anyway, thank you. That's all I have to say.

Mr. KASTENMEIER. I have just two other issues to touch on, to solicit your comments.

One, I think, is a fear with respect to trade, the interface of trade and adherence to Berne, how they can complement one another and so forth, the U.S. position in the world. There is also a fear that if we do not adhere to Berne, or possibly even if we do, that the United States might be disposed by trade negotiations, through GATT and through various other commitments, to arrive at copyright standards through trade that are different and perhaps superior to those that we would otherwise be recognizing through international law or through any adherence to international conventions like Berne.

What is your comment about that?

Mr. GOLDSTEIN. Well, I have no expertise on trade law. Certainly, though, I'm aware of the GATT and roughly what it's about.

I think that the question of rising standards within the GATT and the question of adherence to Berne are entirely separable. Whatever the U.S. Trade Representative does within the context of the GATT, the agenda will not be set by our adherence to Berne. Our adherence to Berne certainly increases credibility at the bargaining table, but I don't think there's an ineluctable force that follows from adherence to Berne leading to higher GATT standards.

Mr. KASTENMEIER. Well, that may well be the case. I think there are some in the world intellectual property community that want to see the United States adhere to Berne and place greater reliance on, let's say, arriving at different standards through trade negotiations and through trade arrangements, bilaterally or otherwise.

One other question, and that is on formalities and registration. Obviously, it is conceded that U.S. formalities as had been exercised in years past will largely be eclipsed. We do still have the issue of registration, and I guess the question is understanding that issue, how important is it. If we were to have inducements to continue registration, what does it achieve for us. What are the arguments against it, what are they based on, and what is the agenda of those who will want to remove even registration.

There are some foreign Berne adherents who suggest that registration prior to suit is not an insurmountable problem in terms of adherence to Berne, if that's the remaining formality, for example, that we retain. What is your own view about the registration aspect and whether it ought to be preserved, and what are the counterarguments and what is it that others have in mind by opposing it or by whatever position they may take?

Mr. GOLDSTEIN. First, I think the cardinal advantage to the registration process is that it creates a record in a central place, in the Library of Congress, for people to consult to get information about copyrights, whom they are held by, whom they have been transferred to.

I can't even speculate as to what might be in the minds of those who say we should drop registration as a condition to sue. I don't believe there is anything in the subtext of Berne, the principles and practice of Berne, that dictates that conclusion. I think this is one of the areas where Berne can accommodate local conditions and practice.

In fact, there is an irony in the sense that the natural rights theory that pervades Berne-this is the founding genius of Berneis one that would be totally comfortable with registration as a condition to suit. The natural right theory-and I'm not talking about moral rights specifically; I'm talking more generally about author's right-the natural right theory says there must be no limits on copyright attaching to an author. A copyright doesn't attach to a work; it attaches to an author. It's an author's right. Enforcement of that right is a separate matter, including attachment of formalities as a precondition to suit.

By contrast, the instrumentalist view that the United States common law relies on says what we all learned in law school-no right without a remedy. We don't understand how you can have an effective right without having a remedy, i.e., access to the courts. Therefore, making registration a precondition of suit impairs the right.

I think in terms of the guiding genius of the Berne Convention, where we're not encumbered by the notion of no right without a remedy, this poses no problem. In fact, I was struck by the fact that of the two published comments that I have seen, of people outside of the United States, suggesting that registration as a condition to suit is a problem and is a hurdle for us to get over, both came from members of the common law community. One came

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.

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.