WILEY, REIN & FIELDING The Honorable Dennis DeConcini March 15, 1988 Page 10 bilateral with the U.S. - - and where only the Berne back door is available reveals not one major U.S. trading partner: Benin, Burkina Faso, Central African Republic, Chad, Congo, Cyprus, Egypt, Gabon, Ivory Coast, Libya, Madagascar, Mali, Mauritania, Niger, Rwanda, Suriname, Thailand, Togo, Turkey, Uruguay, Zaire. Interestingly, several of these Berne states are international piracy centers. is Second, the threat of a Berne member closing the back door only applies in the countries just listed, since national treatment under the U.C.C. the "front door" required independently of Berne in the Berne-U.C.C. member states. Among the countries in which the United States receives "front door" protection are Argentina, Australia, Belgium, Canada, Chile, Costa Rica, Finland, France, Federal Republic of Germany, Greece, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Norway, Philippines, Portugal, Spain, Sweden, Switzerland, the United Kingdom and Venezuela. Third, the quality of protection copyright owners receive in non-U.C.C. Berne countries is open to question. Thailand, for example, currently is a member of the 1908 Berlin text of Berne. Despite its Berne membership, Thailand is a center of piracy so much so that in July, 1987, the President initiated an investigation of Thailand's copyright practices under the GSP annual review measures. Thus, the United States, by joining Berne, can enjoy the same level of piracy "that other Berne members now enjoy," including the United Kingdom, a Berne member, which also has complained about piracy in Thailand. Bearing in mind that backdoor protection must be relied upon only in these countries, members of the Coalition, like other copyright owners, have employed the practice of simultaneous publication and have not found it as burdensome as some proponents of adherence have suggested. While a few examples of the burdens have been presented, no comprehensive assessments have been. Until this legislation came before the Congress, the burdens or hazards of simultaneous publication were not much discussed. In any event, the Coalition regards the gains from eliminating the practice of simultaneous publication in those few states not a party to the U.C.C. as outweighed by the prospects of expanded moral rights in U.S. law. WILEY, REIN & FIELDING The Honorable Dennis DeConcini March 15, 1988 Question 6: The Subcommittee has received testi- I assume that this question refers to the recent episode in Thailand in which a Thai Court denied protection for Earthquake and The Sting based on the failure to effectuate simultaneous publication. Having not read the decision, I cannot comment on whether it also addressed the back door as being "merely a way to get Berne protection without complying with the requirements of Berne." However, even if this were the case, it is incorrect to view backdoor protection as an "artificial mechanism we have adopted." Rather, it is a mechanism incorporated within the text of the Berne Convention itself. There is nothing "artificial" about it. Moreover, even if other countries did view backdoor protection as an artificial mechanism, the threat of a Berne member closing the back door only applies in those twenty-one non-U.C.C. member states of Berne identified in response to Question 5. Question 7: We have heard from numerous copyright The issue is not whether we need to expand moral rights in this country in order to comply with Berne. Rather, it is whether there will be an expansion of moral rights in the United States as a consequence of our adherence. In this regard and as detailed in the answers to the first and second questions above, the Coalition does not believe that we can accept the conclusion that "there will be no expansion of moral rights in the U.S. by the courts." The Hatch Amendment is intended to ensure that that does not happen. WILEY, REIN & FIELDING The Honorable Dennis DeConcini March 15, 1988 Question 8: Why do we need the amendment proposed As detailed in my answers to the first and second questions above, it is the view of the Coalition that the legislation as constructed will likely lead to further expansion and elaboration of moral rights. The mere fact of adherence, without the provisions proposed by Senator Hatch, would effect a profound change in U.S. law. Question 9: For those of us whose preference is No. The underlying purpose of the Hatch Amendment is to preserve the status quo so that the issue of moral rights is not addressed within the context of Berne legislation. Rather than "going too far", the Amendment retains a level playing field until and unless Congress considers the issue further. The Coalition hopes that these responses to your questions will be helpful to your Subcommittee and will be pleased to answer any further questions you may have. Senator DECONCINI. We now will proceed to the last panel, Mr. George Lucas, Mr. Bo Goldman, and Mr. Steven Spielberg, if they would come forward, please. We have a little less than an hour remaining, so I would ask that the witnesses restrain their statements to 5 minutes so we can go to questions. Their full statements will be inserted in the record. We will start with Mr. Lucas, as soon as he is ready. STATEMENT OF GEORGE LUCAS, CHAIRMAN OF THE BOARD, LUCASFILM, LTD. Mr. LUCAS. Thank you, Mr. Chairman, Senators. My name is George Lucas. I am a writer, director, and producer of motion pictures and chairman of the board of Lucasfilm, Ltd., a multifaceted entertainment corporation. I am not here today as a writer, director, or producer or as the chairman of a corporation. I have come as a citizen of what I believe to be a great society that is in need of a moral anchor to help define and protect its intellectual and cultural heritage. It is not being protected. The destruction of our film heritage, which is the focus of our concern here, is only the tip of the iceberg. American law does not protect our painters, sculptors, recording artists, authors or filmmakers from having their life work distorted and their reputations ruined. If something is not done now to clearly state the moral rights of artists, current and future technology will alter, mutilate and destroy for future generations the subtle human truths and higher human feelings that talented individuals within our society have created. This Nation needs a simple moral anchor regarding art and artists. That anchor has been provided for in article 6 bis, the moral rights clause of the Berne treaty. It has worked for many years in many different countries. It is simple. Under article 6 bis, an artist would have the right to object to the defacement of his work. Intellectual properties, products of the mind, creative expression and imagination, are human qualities. They are part of the very essence of what it is to be human. These current defacements are just the beginning. Today, engineers with their computers can add color to black-and-white movies, change the soundtrack, speed up the pace, and add or subtract material to the philosophical taste of the copyright holder. Tomorrow more advanced technologies will be able to replace actors with "fresher faces" or alter dialog and change the movement of the actors' lips to match. I am the chairman of a corporation that produces motion pictures. I also hold the copyrights on several of those pictures. The Berne treaty is absolutely necessary to protect the copyright owner, especially from international piracy. Why do I advocate moral rights for artists when others claim it will destroy the industry? First of all, I feel that a lot of this consternation about litigation toppling the industry, toppling the publishing industry, is not as extreme as everybody thinks. The Berne treaty has worked in a lot of other countries and I think it can work here, too. I think this Nation is old enough and mature enough to deal with this situation. Creative talent is a precious resource. It is limited. It needs to be nourished. It needs to be replenished. Artists need a sense that the work that they are doing is meaningful and that what they are doing will last, complete with all the subtle nuances they have struggled so hard to achieve. As a producer, I do not see how the moral rights proposal, as it exists from the Directors Guild, will affect the actual production of motion pictures any more than it will affect the production of magazines or anything else. Motion pictures are built on the writer's foundation. All of the creative people involved-the cameramen, the actors, and everybody-then look to the director for guidance, and they trust the director and his vision. That is the vision that we are trying to protect. The money spent to alter established works could be better spent to support and develop new talent, to make new color movies. American artists are a national treasure, similar to our forests and our wildlife. We must exploit these resources wisely. Filmmakers have continued to work for me over the years at lower rates than they could get from larger corporations, because I respect their talent and have an understanding of the creative process. I haven't once heard any of the corporate representatives here today say that they respect the creative minds on which their companies depend, and that is all we are asking for, just a little respect for the mind, the human mind behind the computer, the book, the film, the painting. The corporations who hold many of the copyrights are unstable entities. They are bought and sold, and corporate officers change on a regular basis. There is nothing to stop American films, records, books, and paintings from being sold to a foreign entity or an egotistical gangster, and having them change our cultural heritage to suit their own personal taste. There are those who say American law is sufficient. That is an outrage. It is not sufficient. If it were sufficient, why would I be here? Why would John Huston have been so studiously ignored when he protested the colorization of "The Maltese Falcon"? Why have films been cut up and butchered? Where can the artists go to protest? What is the law? Where is the law that says that John Huston can sue or get redress for what he feels was an abomination of his work? You can't split intellectual properties into two parts, and deal with properties now and deal with the intellectual, the mind, our humanness, at some later date. Vandalizing a work of art and then putting a disclaimer on it saying that this is not what the artist originally intended is not sufficient. Excluding some artists from moral rights protection because they were commissioned to create a work is not sufficient. Is an artist who works for hire any less of an artist? Is the Sistine Chapel any less of a work or art and unworthy of protection because Michelangelo worked for hire? Attention should be paid to this question of our soul, not simply to accounting procedures. Attention should be paid to the interests of those who are yet unborn, the children and the grandchildren of the children that are in this room today. They should be able to see |