expiration of a term of protection in the country where protection is claimed. It has also been suggested that as the United States protects all unpublished works, regardless of national origin, there is a term of U.S. protection for all foreign works. E. Moral Rights. The issue of moral rights has raised the most vocal and the most active opposition to U.S. adherence to the Berne Convention. In testimony before the House Copyright Subcommittee the American Bar Association stated that "we fear that an issue as to moral rights is being made to appear as critical with respect to Berne adherence. We believe however, that it is a non-issue which should not be made to appear as controlling in the yes/no context of the United States' answer on Berne adherence." Article 6bis of the Convention requires that the legislation of member nations protect the so-called "right of paternity" --the right to claim authorship of one's works and the "right of integrity" the right to object to distortion, mutilation, or modification of the work that would prejudice the author's honor or reputation. - It has been argued that inclusion of a moral rights provision in the U.S. copyright law would create uncertainty and unpredictability in the motion picture, magazine and book-publishing industries, that depend upon assembling a number of creative works into an interdependent whole. This argument erroneously assumes that changes in U.S. law are needed to conform with Berne's moral rights obligations. H.R. 2962 reflects the view taken by many copyright experts that the totality of current U.S. law, including Federal statutes, certain common law tort and contract rights, and some state statutes, provides sufficient protection for the rights of paternity and integrity to comply with the Convention. copyright law grants to authors the exclusive right to prepare or The U.S. to authorize others to prepare derivative works, which can protect against unauthorized distortion, mutilation, or modification. Another Federal statute, section 43(a) of the Trademark Act of 1946, prohibits false designation of origin in intellectual and artistic works, which protects the right of paternity. State jurisprudence on the common law of contract, defamation, right of publicity, and invasion of privacy, safeguards individual authors from damage to their honor and reputation arising from distortion, mutilation or modification of their works. Dr. Arpad Bogsch, the Director General of the World Intellectual Property Organization, has concluded that "The requirements under this Article can be fulfilled not only by statutory provisions in a copyright statute but also by common law and other statutes." Thus, H.R. 2962 does not include a provision for the protection of moral rights under the copyright .law. Indeed, section 2(a)(4) of the bill states unequivocally that the U.S. copyright statute does not include all elements of moral rights protection. In testimony before the House Copyright Subcommittee Peter Nolan, Vice President and counsel of the Walt Disney Company stated that: "Legislation relating to Berne adherence should include, as an absolutely critical element, provisions similar to those found in Congressman Moorhead's bill that state: (1) the Berne Convention is neither self-executing (3) (4) (5) the existing law and the implementing legislation except as specifically granted in the implementing It also has been claimed that, because of doubts as to whether the Berne Convention is self-executing, U.S. adherence would mark the first step towards unchecked extension of moral rights protection through expansive judicial interpretation of the treaty, irrespective of whether a moral rights provision appears in implementing legislation. This would not be possible under any of the proposed bills. All three bills expressly state that the Convention is not self-executing, and that U.S. obligations may be met only by appropriate domestic law. With regard to moral rights, the Subcommittee has received testimony from many experts including representatives of 11 countries who are members of Berne and their opinions are almost unanimous, in that Berne is not self-executing and present U.S. law concerning moral rights is adequate and no change in law or practice need be made. The Congress can adopt legislation changing the law regarding moral rights, but it can do that at any time, regardless whether or not the U.S. adheres to Berne. And as a practical matter, in my opinion there is very little support among the Judiciary Committee members to make substantive changes in U.S. law regarding moral rights. Therefore, to refuse to join Berne based on some fear that it will change moral rights law in this country is unfounded and without any basis in fact. The Berne Treaty provides the highest form of copyright protection in the world. The United States is the largest exporter of copyrighted works. It only makes sense to provide American creators with the best protection available. If the U.S. joins Berne we will have immediate and direct contact with 24 countries wherein we have no contact today. Some of these countries are serious pirates of U.S. copyrighted works. These pirates will be forced to deal with the U.S. directly. The Congress is presently very concerned with the U.S. trade ** ance and the number of our trading partners who send the 1.5. Billions of dollars of their goods but refuse to permit the 1.3. to export its goods into their country. It's not protecmist to protect American inventions, American technology and American creativity. This creativity represent the work product 14 many U.S. citizens and they have every right to the maximum protection of that work product and this is an important factor in the Congress' decision to join Berne. The Cabinet Council on Commerce and Trade unanimously recommended Berne adherence as an important international intellectual property objective. President Reagan endorsed this recommendation in his State of the Union address on January 27, 1987. To emphasize its importance, he sent the former Secretary of Commerce Mac Baldrige, U.S.T.R. Clayton Yeutter and Under Secretary Wallis to testify before the House Judiciary Subcommittee. Due to the strong interest of Bob Kastenmeier and others this legislation has a chance of enactment. It is important legislation but because of its nature, it would be easy to stop unless the White House, the Departments of State and Commerce, the Copyright Office and the private sector get behind it one hundred percent. The time is right, the need is there and they have the attention of the 100th Congress. Senator DECONCINI. Chairman Kastenmeier, thank you. I appreciate your attendance here and thank you for submitting Representative Moorhead's statement. I was going to ask you some questions on including a moral rights provision, but you certainly articulated your position very clearly and the reason you included a moral rights provision in your legislation. So I really don't have any questions. You answered them for me. Thank you very much. Senator Hatch. Senator HATCH. I have no questions. I want to thank you for your testimony, Bob. It's good to have you over here, and we appreciate the leadership you're providing in the House. Mr. KASTENMEIER. Delighted, Senator Hatch. Senator DECONCINI. Thank you. Excuse me. Senator Leahy? I'm sorry. Senator LEAHY. I have only one very brief one, Mr. Chairman. I may have missed this. I had to go out and take a phone call. What is the schedule that you see in the House on markup and all? Mr. KASTENMEIER. Senator Leahy, we have concluded our hearings altogether, and I would think within the next 2 to 4 weeks we might be prepared to move to markup. From my own testimony, I'm fairly sanguine that we can accommodate differences among the several bills. As you know—and there is a side-by-side available for us all-the three versions are quite similar. As long as the moral rights question does not surface in a sense of separately commanding a special debate, and perhaps divisive attention, I think it can be moved. The only remaining question, as I've suggested, is what to do with architectural rights as we have put them in all bills, but the last hearings we've had on architectural rights suggest that they may be troublesome; that we may not be as prepared as we thought with respect to that. Taking a minimalist approach, it may be desirable—at least that's what we're considering-not to have architectural rights as a part of this in terms of changes in American copyright law. Once we have resolved that question, I think we're prepared to proceed to enactment. I think we do have consensus. Senator LEAHY. Thank you. Thank you very much, Mr. Chairman. Senator DECONCINI. Thank you, Senator Leahy. Thank you very much, Chairman Kastenmeier. Mr. KASTENMEIER. Thank you. Senator DECONCINI. We'll now have our panel: Secretary William Verity, the Secretary of Commerce. Thank you, Mr. Secretary for being with us. If you'd come and be seated, we'd appreciate it. We also have Ambassador Yeutter, the U.S. Trade Ambassador, and the Under Secretary of Economic Affairs, Mr. Allen Wallis. We'll lead off with Secretary Verity and then Mr. Yeutter and then Mr. Wallis. Because of Mr. Wallis' commitment to do some chores for the Secretary, we will ask him questions first and excuse him. |