Senator DECONCINI. Thank you for being with us today and helping us on this subject matter. The committee will stand in recess until March 3 on this subject matter, when we will conclude the hearings. [Whereupon, at 11:12 a.m., the subcommittee recessed, to reconvene on March 3, 1988.] 1 THE BERNE CONVENTION THURSDAY, MARCH 3, 1988 U.S. SENATE, SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS, Washington, DC. The subcommittee met, pursuant to recess, at 9:50 a.m., in room 106, Dirksen Senate Office Building, Hon. Dennis DeConcini (chairman of the subcommittee) presiding. Also present: Senators Leahy, Heflin, Hatch, and Grassley. Staff present: Edward H. Baxter, chief counsel and staff director; Cecilia Swensen, legislative aide/chief clerk; Elizabeth McFall, staff assistant; Kelly Barr, legal intern; Jon James, legal intern; Randy Rader, minority chief counsel (Subcommittee on Patents, Copyrights and Trademarks); Abby Kuzma, general counsel for Senator Hatch; Carolyn Osolinik, chief counsel for Senator Kennedy; Steve Metalitz, special counsel for Senator Leahy; Matt Gerson, general counsel for Senator Leahy; Mamie Miller, counsel for Senator Heflin; Carl Hampe, counsel for Senator Simpson; and Melissa Patack, minority counsel for Senator Grassley. OPENING STATEMENT OF HON. DENNIS DeCONCINI, A U.S. Senator DECONCINI. The Subcommittee on Patents, Copyrights and Trademarks will come to order. We are starting a little late, and we apologize for that, because there is a vote going on at this very moment, until 10 o'clock, and we wanted to be sure that the members had a chance to vote. This is the second hearing on the Berne Convention that this subcommittee has held. We hope to conclude the hearings today. We have a distinguished group of witnesses and we look forward to their testimony. Because of the time constraints, we are going to ask each witness to keep their remarks before the committee to 5 minutes so we can have time for questions. Full statements will be printed in the record for review of the entire subcommittee and the full committee. We are going to hear a lot of information today in testimony on the subject of moral rights. Certainly this is a good forum to discuss that issue, but I think it is important also to indicate that that is an issue that may have to be reviewed another day. I am not closed to discussing a moral rights provision, but that is what I believe would be the stumbling block if we are going to have an opportunity to pass some meaningful legislation. However, the purpose of these hearings is to receive testimony about the moral rights issue and also to hear from those who oppose U.S. adherence to the Berne Convention. We will proceed on that basis. I now would like to yield to Senator Leahy from Vermont. He was the ranking member of this committee and has had a real influence on patents and copyrights in the Senate, and really has brought us today to this hearing through his leadership along with that of McC. Mathias in the last Congress. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. Senator LEAHY. Thank you very much, Mr. Chairman. I am delighted we are having these hearings. I think they are extremely important. As you know, a couple of weeks ago we had an impressive array of witnesses from the executive branch, the Copyright Office, and the House of Representatives. They told us why we should join the Berne Copyright Convention. They agreed that Berne would strengthen our dominant position in the trade of copyrighted works and hence copyright protection worldwide. Now we are going to hear from an impressive array of witnesses from the private sector. The message, I understand, is on the whole supportive of U.S. adherence to Berne, but it is not a unanimous group. Two groups of dissenters are here this morning. Neither group, as I understand it now, takes a position of outright opposition to Berne. Both question how Berne will affect the moral rights of authors, artists and other creators. Some film directors want to include specific protections in Berne implementing legislation. At the other end of the spectrum, some magazine publishers want to freeze the development of U.S. law on moral rights. Well, let me just state my own position so everybody will know. I think moral rights is an legitimate issue and it deserves serious consideration by the Congress. In fact, my Subcommittee on Technology and the Law conducted a hearing in May to assess ways in which advancing technology, like colorization, affect the relationship between directors and producers. But I feel equally strongly that we must not let the moral rights issue prevent us from joining the Berne Convention, which is a step that promises great benefits to creators and copyright owners. Nor should we be diverted from this goal by any invitation to prejudge the outcome of some future debate on legislation that may be concerned with moral rights. Let me make sure that everybody is clear how I feel about that. I think that there is an issue that will eventually have to be addressed on the question of moral rights. I want to see us join Berne and then have that debate. I would not support, and in fact would actively work against any legislation that would prejudge the question of moral rights as we join Berne. In other words, if someone wants to put in legislation that says we can join Berne only if we attach to it legislation that says that moral rights are now frozen or the whole issue is dispensed with, it is done, it is over with, I would strongly oppose that. I would work against that and I can guarantee you that would not become law. I think what we have to do is join Berne and then raise the issue on moral rights. Which way I might go on the issue of moral rights I don't know. I think we have to learn a lot more about it, but the only practical way to achieve the goal of Berne adherence is to focus the legislation solely on the minor changes to U.S. copyright law that are needed to comply with Berne standards. The members supporting Berne, each of the people who are here supporting Berne, have set aside some of their copyright agendas to focus on Berne because they know that through Berne they can, first, ensure that pirated computer software is not used at a loss leader in foreign stores that sell computer hardware; second, prevent American movies from being copied into the VCR format the same day they open in theaters; third, clear bookstore shelves of American works that are produced on underground printing presses; and fourth, reward the hard work that goes into the images and creations that Americans provide to the world's consumers. So today's controversy is Berne; tomorrow's controversy is moral rights. Our common agenda today is the enhancement of worldwide protection for American works of copyright, in the interests of creators and copyright owners alike. In the service of that goal, there is no more pressing decision before us than bringing the United States into the world's premier international copyright agreement, the Berne Convention. Again, Mr. Chairman, I applaud you for having these hearings. I think they are extremely important. Senator DECONCINI. Thank you, Senator Leahy. I now yield to the Senator from Iowa, Mr. Grassley. OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator GRASSLEY. Mr. Chairman, I appreciate very much the further indepth analyses that you are making of this issue and the length to which you are going to see that all points of view are brought out. We know that the witnesses at the hearing, last time you held the hearing, spoke about the need for Berne adherence and they did that in the context of international trade. Of course, we all learned about the importance of the industries affected by Berne in the U.S. balance of trade. These officials testifying last time saw this convention as a tool in curbing the piracy of U.S. works, improving balance of trade and also enhancing our position in negotiation. I, just like all of my colleagues on this committee, have some concern about the issue of moral rights which of course is a point of controversy in the discussion about the Convention. Today's witnesses of course have firsthand experience in the industries which would be affected by our adherence to the Convention. I look forward to hearing their views and I believe, like most of my colleagues on this committee, the testimony today will help me as I formulate conclusive views on the issue of moral rights. That is why I see this hearing as very important. Thank you, Mr. Chairman. Senator DECONCINI. Thank you, Senator Grassley. |