content is at the core of the interests protected by the First Amendment. 3. Effect on Existing Works The Berne Convention expressly requires that its terms apply to previously created works that are not in the public domain in their country of origin. Thus, most works now under copyright, including books, motion pictures, magazines, and photographs, where all copyright interests have been transferred for valuable consideration, will, suddenly be subject to moral rights claims and demands for further compensation. Such an unforeseen imposition of the moral right upon existing contracts for those works would work all the unfairness of ex post facto legislation. The majority of proponents of Berne adherence take the position that no moral rights legislation is necessary for U.S. adherence--the so-called "minimalist approach." Even accepting this premise for purposes of argument, it is unrealistic to ignore the domestic and foreign pressure for expansion of these rights that inevitably will occur once the United States is irrevocably committed to the Berne Convention. And that pressure is likely to be grounded on arguments that expansion is required to comply fully with the obligations of Berne membership. Testimony before the Congress already foreshadows such an effort to expand the moral rights if the "minimalist" approach is adopted. Perhaps the most dangerous by-product of the minimalist approach would be its likely effect on the development of the common law. Congressional acceptance of the proposition that the moral right (or its equivalent) is already a part of American law would remove the restraints on judicial legislation afforded in the past by judicial rejection of the moral right. The Report of the Ad Hoc Working Group, which invites judicial legislation, will in all likelihood be cited as a part of the legislative history or ancillary to it. The Report invites judicial legislation by speculating about how the law "might" develop. The point here, of course, is not whether the courts will do what the Report suggests that they might do. The issue is that adherence to Berne must imply that there is a moral right (or its equivalent) somewhere in American law; that upon the Report's analysis, it lies in large part in state statutory and decisional law; that since the courts have by interpretation of common law principles, or of state or federal statutes, created the right, they are free -indeed encouraged to expand it. - The risks imposed by this expansion of liability will be mary times greater in the United States than abroad. The litigious nature of our society, coupled with the questions nherent in radical change in the law, leave little doubt that destabilizing uncertainty and much litigation will result from the incorporation of the moral right. The risks inherent in the moral right litigation will be reputation. Injury to reputation is non-economic and difficult to quantify. Such non-quantifiable injuries have frequently resulted in unpredictable and astronomical jury verd.cts with tenuous relationship to the loss. Injunctions against publication may impede the flow of works to the On the foregoing analysis, the Coalition opposes adherence to the Berne Convention. However, the Coalition would not oppose Berne adherence if the principles embodied in the Hatch Arendrent were included in the implementing .3.$.ation. Such principles would preclude expansion of the moral right, protect the timely, full and effective 4.sser.nation of copyrighted works by members of the Coalition, and preserve the delicate balance among authors, publishers, and the public. In sum, the moral right is certain to impede the free and effective flow of information and copyrighted works to the public due to their novelty and to the uncertainty surrounding their scope and implementation. Burdensome litigation is virtually assured. Moreover, as discussed Congressional acceptance of the Irodos 1.*- that rights are already a part of CLI 28. without 8 EXT.C freezing of the law WOLLD TENOve the restraints or nudreta. conventions expectations and ris, allocations The Coalitior and Senator Bator have worked towar position consistent wit adherence that would protect the flow of informatior to the public without upsetting this delcade balance The Coalitior supports the Amendment introduced by Senator hate which represents a construct step toward resolutior of the problems posed by the mom. right. BIOGRAPHICAL STATEMENT David Ladd as Of Counsel to the law firm or W é Fielding in Washington D.C. Register of Copyrights 2980-1985 and as B. S. COMM ;) Patents during the Kennedy Administration. Statement of David Ladd on behalf of The Coalition To Preserve the American Copyright Tradition Conde Nast Publications Inc. Forbes Inc. McGraw-Hill, Inc. Omni Publications International, Ltd. The Reader's Digest Association, Inc. Triangle Publications, Inc. Before The Subcommittee on Courts, Civil Liberties, and the Administration of Justice Committee on the Judiciary U.S. House of Representatives September 16, 1987 |