In 1982 when the United States extended the manufacturing clause until July 1, 1986, the United Kingdom and several Berne members who comprise the European Community called attention to the possibility of retaliation under the Berne Convention. In the final analysis, the attack of these Berne member States focused on the manufacturing clause and was centered in the General Agreement on Tariffs and Trade (GATT). No official steps toward Berne-related retaliation were taken. 3. What type of retaliation is authorized by Berne? The power of a Berne state to retaliate under Article 6 against a non-Berne state which does not protect the works of the concerned Berne state in "an adequate manner" is confined by precise conditions. First, no permitted retaliation can be applied retroactively. Second, any state invoking the retaliatory power must notify the Secretariat for the Berne Convention, the World Intellectual Property Organization (W.I.P.O.) in writing of such action, specifying the countries in respect of which protection is to be restricted and the substance of such restrictions. This information is thereafter communicated to all Berne member States. Under Article 6, Berne states are allowed to "restrict" protection, but not withhold it entirely. In the absence of any real experience, it is hard to draw a clear line between appropriate and excessive "restrictions" on protection. There are no real guidelines controlling the circumstances under which a Berne state may choose to retaliate against a non-member country for allegedly inadequate protection. A number of important European states recently have adopted various measures to restrict participation of foreign works in systems to remunerate rightsholders for private copying, rental rights, and similar new media for distribution of audiovisual works. If the United States wishes to maintain its national system which limits rental rights after first sale, or to preserve the de facto private copying privileges derived from the Betamax case and if European states move gradually in other directions, real balance of payments considerations may prompt certain states to use Article 6 as a legitimate means to cut valuable U.S. works out of their magkets in these areas. Only by joining Berne can the United States be certain of preventing resort to Article 6 by any Berne member which may be concerned over excessive profits from new uses flowing to the United States. Even in the absence of a clear and present danger of such a step, in a rapidly changing and trade-charged global environment, Berne adherence to avoid such a possibility is a sound preventative step. Senator DECONCINI. Our next witness will be Ralph Oman, Register of Copyrights. And, Dorothy Schrader, we welcome you today to the committee. We thank you for your continued assistance in these areas and your testimony. We ask that, due to time constraints-some of us have to be with Chancellor Kohl this morning, so we ask that you summarize, Mr. Oman, if you would, your remarks. Your full remarks will appear in the record as if read. I was just looking at them and they are very extensive, and we thank you for the time that you and Ms. Schrader put into those remarks. Would you please summarize for us? STATEMENT OF RALPH OMAN, REGISTER OF COPYRIGHTS, ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSEL, AND LEWIS FLACKS, POLICY PLANNING ADVISOR Mr. OMAN. Thank you very much, Mr. Chairman. I would be happy to summarize. I would also request your permission to ask Mr. Lewis Flacks, Policy Planning Advisor and expert on the Berne Convention, to join me. Senator DECONCINI. Mr. Flacks, please join us. Mr. OMAN. The Copyright Office, as you have mentioned, has prepared extensive written remarks on Senator Leahy's bill and on Senator Hatch's bill, and, with your permission, I will submit those comments for the record. Before turning to the two remaining controversies, moral rights and architectural works, I want to affirm that the Copyright Office strongly supports U.S. adherence to the Berne Convention. Berne adherence will enable the United States to take its proper place in the international community as a leader of both Berne and the Universal Copyright Convention and will send an unmistakable signal to all countries that we place great value on balanced protection of copyrighted works. Both S. 1301 and S. 1971 take the minimalist approach that has been discussed this morning. Both bills agree on several major points, such as clauses guarding against self-execution and retroactive application, on the elimination of the notice requirement, and on the acceptance of the jukebox compromise. When renewed interest in joining Berne arose a few years ago, the Copyright Office supported a full public debate in order to identify the necessary changes in our law. To your great credit, Mr. Chairman, and that of Senator Leahy and that of Chairman Kastenmeier, we have had a lively public debate on the pros and cons of U.S. adherence to the Convention. We achieved consensus on many of the issues that were seen as roadblocks to adherence. Modification of the jukebox compulsory license appears acceptable to all parties. No one is opposed to the elimination of the copyright notice requirement, and we have confirmed the public interest in the registration system and of mandatory deposit to the benefit of the Library of Congress. On this point, the Copyright Office endorses the approach of S. 1971, Senator Hatch's bill, since it preserves the full panoply of incentives to registration and it's consistent with the minimalist approach to implementing legislation. First, let me talk about moral rights briefly. Resolving the moral rights controversy remains the single most hotly debated issue on the path to adherence to the Berne Convention. After reviewing all of the arguments, I agree that we need not enact specific moral rights legislation because sufficient protection is available under alternative State law remedies and the Federal Lanham Act to meet the Berne standards. Both S. 1301 and S. 1971 endorse the position that no change concerning moral rights would be required by U.S. adherence to the Berne Convention. If Congress agrees that a mix of existing copyright and noncopyright remedies form the basis for meeting our moral rights obligations, then we must take special care to insure that nothing in the implementing legislation hampers the appliation of these alternative remedies. Senator Leahy's bill contains no provision specifically addressing moral rights except to make clear that there is no reduction in any right or interest in works protected under title 17, U.S. Code, arising under other Federal or State laws. Senator Hatch's bill affirmatively states that title 17 does not provide an author with the right to be named as the work's author or to object to uses or changes to the work that would prejudice the author's reputation or honor, and specifically provides that alternative legal remedies for protecting these rights shall neither be enlarged nor diminished by this act. Whichever approach Congress finally adopts, the committee report should make clear that the alternative remedies, especially the State law remedies, are not preempted by section 301 of the Copyright Act. Now let me turn briefly to protection of architectural works. We have really had insufficient public debate on this extremely complex area of the law, and we can't yet assess the impact of protecting under copyright an architect's final product; in other words, buildings and other structures. I am confident that the adherence process can go forward on the basis of existing U.S. protection for blueprints and the original artistic features of a building and also on existing noncopyright State law remedies. The subcommittee may wish to study this issue in greater depth, and the Copyright Office is at your disposal to help in such a study. But if the subcommittee decides to continue existing law in this point, it is vitally important that the committee reports clearly reconfirm the principle stated in section 101 of the Copyright Actthe definition of pictorial, graphic, and sculptural works-and section 113 of the Copyright Act. Specifically, we must stress two points. First, under the present Copyright Act, copyright in a technical drawing does not confer copyright protection in three-dimensional, utilitarian designs and objects such as buildings. Second, Congress intends no change whatsoever in the separability standard expressed in the 1976 act and the committee reports. We want to keep clear the demarcation between protectable artistic works and unprotectable designs of useful articles. The Copyright Office, without prejudging the legislative outcome, has already begun internally a process of preparing for changes in copyright regulations and administrative practices that would be required by the implementing legislation. We are also preparing to offer brochures and other printed information and to undertake an ambitious, nationwide lecture tour that will help educate the country on the changes in the law and our new obligations under the Berne Convention and the implementing legislation, if Congress, in fact, passes it. Our preparations are simply a matter of prudence. We will await the further deliberations by the Congress with respect to the pending bills and, as always, the Copyright Office is standing by ready to help the subcommittee with any technical assistance you may request. I would be pleased to answer any questions. [The prepared statement of Mr. Oman follows:] Statement of Ralph Oman Assistant Librarian for Copyright Services Before the Senate Subcommittee on Patents, Copyrights and Trademarks Senate Judiciary Committee 100th Congress, Second Session Mr. Chairman and members of the Subcommittee, it is a privilege to appear before you today to talk about S. 1301, S. 1971, and the Berne Convention for the Protection of Literary and Artistic works. Both S. 1301 and S. 1971 propose to amend title 17 of the United States Code to enable the United States to meet the obligations of the Berne Convention for the Protection of Literary and Artistic Works (hereafter "Berne"), as revised at Paris on July 24, 1971, and become a member of this 100-year old treaty. Both proposals purport to take a minimalist approach, meaning that they propose changes only where changes are required to make United States copyright law consistent with the clear obligations of Berne. The two bills do differ, however, reflecting the lack of consensus on some Berne related issues. S. 1301 sponsored by Senator Leahy is largely derived from the Mathias Bill, S. 2904, which pioneered the Berne adherence issues in the 99th Congress. S. 1971, introduced by Senator Hatch, is the Reagan administration's bill to implement the Berne Convention. Within the last few years, interested parties within the United States have renewed attempts to get the United States to join Berne. Congress is now seriously considering the question of adherence. Both the House and the Senate have already held hearings that explore the wisdom of |