7 of pictorial, graphic and sculptural works, subject to all the limitations applicable to such works, can be considered after adherence to Berne. This consideration can be in the context of design legislation, by a specially appointed commission or appropriate governmental agencies. 3. Formalities. As you know, the central feature of Berne is its prohibition of formalities. Elimination of formalities is perceived as not only augmenting authors rights but also as instrumental to U.S. trade interests. U.S. copyrighted products should not face unnecessary impediments to the acquisition of copyright rights overseas. We are all in agreement that the copyright notice requirement must be eliminated. Again, library and educational communities have joined with authors and proprietors in agreeing that such a step can and should be taken. The one remaining area in formalities that is a point of disagreement concerns the need, under Berne, to remove the requirement of registration as a precondition to the bringing of an infringement suit. Some proprietary interests have urged that this requirement of our law is a Berne proscribed formality; others have doubted this conclusion. In my opinion and that of the Register of Copyrights under a minimalist approach, our law on this point should not be amended. - The objective of maintaining the flow of materials to the collections of the National Library through registration, the evidentiary use to the judicial system, the usefulness of the examining process, and the public interest of a comprehensive and open registry relating to the existence, ownership and exercise of copyrights all argue for continuation of this registration incentive. 4. Moral rights. rights. As you know, Finally, there is the question of moral in order to stimulate discussion, I 8 proposed a moral rights provision in my bill. I did stimulate We heard from creators, producers, discussion. employers, Based on hearing the divergent views of the interested parties, I have come to respect the view that the best course is to avoid statutory treatment of moral rights in the context of Berne. The matter should be left to the development and application to the common law and intellectual property doctrines ancillary to copyright, whether Federal or State in nature. This conclusion rests in part on the political reality that Berne legislation with a moral rights provision simply will not pass. Further, I do not believe such Federal rights are order to secure U.S. adherence to Berne. opinion is not, parenthetically, based on any hostility to moral rights of authors. mandated in This intellectual You will hear a lot about moral rights, so I will explain further what I mean. The vast majority of witnesses testifying agreed that common law doctrines, including defamation, privacy, publicity and unfair competition contain the basic elements of moral rights. Several of the economic rights under the present Copyright Act (such as derivative rights) permit authors achieve many moral rights objectives. Moreover, the Lanham Act and State common law are rich sources of law in the area. to - - For Congress now to attempt to create statutory moral rights at the Federal level and thereby pre-empt the growth of State law would require extraordinarily complex legal surgery. То take only so much from the law of libel as is needed for moral rights protection and leave the rest of that doctrine at common law intact and unimpaired; to carve national rules out of the convoluted rules of unfair competition or publicity and leave the remainder clear these are very difficult things to do. And they are not necessary now. III. Conclusion For a century, the United States and the states of the Berne Union have pursued alternative paths in their international copyright policies. The different routes, as a historical matter, are attributable to two things. First, until the close of the Second World War, the United States thought of itself as a copyright importer, a user of works with all of the caution and hesitancy that every buyer brings to any seller. Second, we were particularly attached to legal norms, principally relating to formalities and term, that diverged from the rest of the world. Both circumstances are now profoundly changed. The United States is the principal copyright-exporting nation of the world. And, after over 30 years of hard work, in 1976 we revised our law to move away from many of the rules which had kept us apart from the Berne Union. The 1976 Act was enacted with a weather eye on Berne, its net effect being to bring Berne adherence within reach. Today, the climatic variables are all favorable for U.S. adherence. There is a strong political consensus in favor of U.S. membership. I appear with the ranking minority Member of my subcommittee, and will be followed by high-ranking officials from the executive branch. We all recognize the need to cooperate, to put aside particular agendas and to move simple, direct, implementing legislation quickly to enactment. Timing is essential and we do not have all that much time. We can achieve a signal step in the history of American intellectual property development by rapidly moving to enact implementing legislation, ratify the Convention and deposit our instrument of accession by the end of this year. And, I believe we must strive mightily to do so, before the weather changes. 10 My subcommittee and I are at your disposal in your difficult work ahead. We all toil under many pressures. Yet, I hope you derive as much satisfaction as I have from knowing that this is truly historic business we are about. February 18, 1988 STATEMENT OF THE HONORABLE CARLOS J. MOORHEAD BEFORE THE SENATE SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS ON H.R. 2962 THE BERNE CONVENTION IMPLEMENTATION ACT On July 15, 1987 Congressman Ham Fish and I introduced H.R. 2962, a Reagan administration proposal for implementation of the Berne Convention for the Protection of Literary and Artistic Works, as revised at Paris on July 24, 1971. Two other proposals have been introduced in the 100th Congress, H.R. 1623 by Representative Kastenmeier (D-Wis.) and S. 1301 by Senator Leahy (D-Ver.) After explaining the ways that U.S. adherence to the Berne Convention will serve the national interest, I will discuss how H.R. 2962 would implement the Convention's requirements, drawing comparisons with the other two bills where appropriate. I. Reasons for U.S. Adherence to Berne. United States adherence to the Berne Convention is essential to secure and maintain a strong and credible U.S. presence in the fast-growing global information economy. There are compelling reasons for the United States to join. The first and most important reason to join Berne is that it will assure the highest available level of international protection for U.S. authors and copyright holders. The Berne Union has 76 members, including virtually all of the free market countries, a number of developing nations, and several nations of the Eastern Bloc. The United States, the Soviet Union and China are conspicuously absent from this list. The United States and the Soviet Union along with another 76 nations belong 85-836 0 - 88 - 3 |