In the Congresses that followed, these principles were developed further and a key event took place. The Congress of 1878, under the chairmanship of Victor Hugo, proposed to create an international association to carry forward the work of the Congresses. Thus, the International Literary and Artistic Association was created to provide a focus for international copyright. The Association did its work well, and in 1884 the Swiss Government invited delegates to attend a conference at Berne. Fourteen nations, including some who could be regarded as developing nations, attended. The conference debated at length the specifics of a new international agreement and proposed a draft convention having 21 articles.

The work continued, and in 1885 a second official conference, this time including delegates from 20 countries, including the United States, was convened. This conference took up the 1884 draft which included a number of steps toward the international "codification" of the copyright law. The 1885 conference retreated somewhat from this draft and left much of the substance of authors rights to local legislation, setting only broad guidelines in the convention. The Swiss Government communicated the text of the draft convention to fifty-five countries along with an invitation to attend a diplomatic conference the following year.

In 1886, the final conference was convened in Berne. The United States attended the conference as an observer. The Convention met with approval, and 10 countries signed the text on September 9. The fundamental principle of the Convention was national treatment, subject to the limitation that the term of protection could not exceed the term in the country of origin of the work. The Convention did contain the beginnings of an international codification by providing that the minimum term was to be 10 years from publication for the translation right; by establishing a public performance right; and by dealing with such topics as seizure of infringing imported copies, the presumption of authorship, the creation of adaptations of protected works, and provisions providing for the free use of certain newsworthy materials.

International Copyright

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The new Convention was opened for revision in 1896 in Paris, and again the United States attended as an observer but failed to accede to the Convention. In this early conference, the Berne Convention was already established as a force for higher standards of protection for the creative efforts of authors, balanced against the public need for fair access to works. This principle shows up in the two main revisions made at the conference of 1896. The first extended protection to works of any author published in a member country, thus recognizing the universality of authorship. The second recognized the translation right for the full term of

copyright but provided that the author would lose the right if it was not exercised within 10 years of publication.

The second revision of the Convention took place in Berlin in 1908 with the United States attending as an observer. As a result of this conference, the Convention was almost completely rewritten to include some of the fundamental principles that have endured to this day and that were major divergences between U.S. copyright and the laws of the Berne Convention countries. Perhaps most important, protection under the Convention was declared to be independent of any formalities and the term was set at the life of the author and 50 years. The Convention recognized new technologies. It afforded protection to photographs, and it recognized the rights of authors to authorize the adaptation and public performance of their musical works for mechanical instruments. The Convention also recognized the rights of authors of literary works to authorize the adaptation of their works and their public performance in motion pictures. The Berlin text also clearly established the principle that members were bound to provide protection for the works defined in the Convention as literary and artistic works.

U.S. Copyright Revision of 1909

Meanwhile, the United States was revising its copyright law. In the 1909 revision, the United States maintained, and even strengthened, its system of formalities. It also continued the "manufacturing clause" of the 1891 Chace Act but in a restricted form. The Chace Act had made it possible to extend protection to foreign works, but on the condition that all copies sold in the United States had to be manufactured here. The 1909 law made this applicable only to works in the English language, thus discriminating against British publishers. As a consequence, an additional protocol to the Convention was established in 1914 that would permit Berne countries to deny protection to works of authors from non-Berne countries if those countries did not provide adequate protection for the works of authors of Berne members.

Given the wide divergence between the 1909 U.S. copyright law and the Berne Convention Berlin text of 1908 in the area of formalities and term alone, Berne adherence was simply out of question for the United States without a major revision of its copyright law.

U.S. International Copyright

Nevertheless, sporadic attempts were made to revise our copyright law to adhere to the Berne Convention. Needless to say these attempts failed. Following the "normal" cycle there should have been a Berne revision conference in 1914-1918 but the intervention of World War I caused the conference to be de-layed until 1928.

Again, the United States attended the 1928 Rome Conference as as an observer. The main accomplishments of the Rome Conference were to recognize the moral rights of the author -- the right to claim paternity of the work and to object to uses that would bring discredit on the author and to establish the author's right to control the distribution of a work by broadcasting. Although the Rome text was approved, the 1908 Berlin text remained open for adherence until August 31, 1931. The legislation needed to permit Berne adherence (H.R. 12549) passed the House of Representatives and on January 13, 1931. President Hoover transmitted the the Berne Convention to the Senate on January 21, but the Congress adjourned before the Senate could act on either the legislation or Berne Convention adherence.

On February 19, 1934, President Roosevelt sent the Rome text of the Berne Convention to the Senate to be considered in conjunction with Senator Cutting's bill, S. 1928, to bring the U.S. copyright law into full compliance with the Berne Convention. This attempt likewise was doomed to failure, perhaps because as some speculated, Berne adherence was linked to a general revision of the copyright laws a task made politically difficult by the emergence of the new technologies of broadcasting and motion pictures.

In 1935, the Senate did give its advice and consent to the Rome text, but, because of the failure of passage of concurrent revision legislation, the advice and consent was withdrawn the next day. This was as close as the United States came to Berne adherence before World War II intervened.

Following World War II, the United States emerged as the world's leading exporter of copyrighted works. American music, books, motion pictures, and stage shows were in demand worldwide. Our antiquated system of international copyright protection simply did not meet the demands placed upon it, and interest emerged anew for adherence to an international copyright treaty.

Based on earlier experience, it was decided to address separately the issues of copyright revision and adherence to a multilateral copyright treaty. It was apparent that Berne adherence was simply out of the question our 1909 copyright law was too much at variance with the Berne Convention; there was no likelihood that Berne standards would be lowered to permit the United States to adhere; and improved international copyright relations was seen as an immediate need.

The Universal Copyright Convention

These pressures led the United States to work with the Berne countries and the United Nations Educational, Scientific and

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Cultural Organization (UNESCO) to develop a new compromise convention that would permit the United States to adhere, while maintaining its rather unique system of copyright based on formalities. The new Universal Copyright Convention (UCC) was intended to be a bridge leading to ultimate adherence to Berne. The UCC established minimum standards that could be a new common denominator among States, both members of the Berne Union and members of the new UCC. The effort was successful and on September 5, 1952, the new Convention was signed in Geneva, and, following its ratification by the required 12 states, it came into effect on September 16, 1955. The provisions of the UCC are rather simple and in many ways it resembles the original 1896 Berne Convention. It relies on national treatment, but it permits formalities. The minimum term is 25 years from the death of the author or from publication, and the requirements as to minimum rights are rather modest.

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But even with a tailored convention, changes in the U.S. law were needed, and the effort required to achieve these changes was substantial. The objections that emerged were overcome and on August 31, 1954, President Eisenhower signed Public Law 83-743 that brought about the technical changes largely related to the formalities of deposit and registration, and the manufacturing clause -- needed to permit the ratification of the UCC on November 5, 1954. Since we adhered to the UCC, it has been the sole vehicle through which new international copyright relations have been established between the United States and other countries.

In the nearly 30 years since we joined the UCC, its development has continued. Rather than withering away, it has become an important Convention in its own right. Like the Berne Convention it was revised at Paris in 1971 to take into account the demands of developing countries. In some circles, it is no longer regarded as a transitional or bridge Convention.

However, recent events have again awakened interest in the possibility of U.S. adherence to Berne. First, the United States withdrew from UNESCO at the end of 1984; second, the economic importance of the copyright industries continues to grow; and finally, the 1976 comprehensive revision of the U.S. copyright law brought our law. generally in line with worldwide standards.

The U.S. withdrawal from UNESCO will not affect our membership in the UCC or our position on the Intergovernmental Copyright Committee (IGCC), the governing body of the UCC, but it does reduce significantly our ability to exert control over the programs of the UNESCO Copyright Division. It also removes any budgetary control we could exert over the general UNESCO copyright-related work through our participation in the UNESCO General Assembly's budget approval process. However, the very reasons for which we withdraw

from UNESCO apply to an evaluation of its effectiveness as a forum in which U.S. worldwide concerns with copyright ought to be addressed. The influence of the developing countries is disproportionately strong in UNESCO, and this strength is felt in copyright matters. In fact, there are real pressures from the developing countries to revise the rules of procedure for the election of states to the IGCC so as to assure developing country control of the IGCC.

On the other hand, the Berne Convention is administered by the World Intellectual Property Organization (WIPO), a specialized United Nations agency headquartered in Geneva. WIPO is a wellmanaged, efficient organization where the influence of the developing countries is not as strong as it is in UNESCO. Even though we are not a member of the Berne Convention, we are a member of the Convention establishing WIPO, and we are one of the early signatories of the Paris Convention for the Protection of Industrial Property. Thus, we know well WIPO's capabilities and the strengths of its Director General who we understand is to appear before this Subcommittee tomorrow.

The importance of trade in products that embody intellectual properties continues to increase, placing an even greater emphasis on assuring the broadest possible copyright protection for American authors both in terms of the works and the rights protected, and in the number of countries in which that protection is available. Adequate and effective copyright protection is essential to American firms marketing abroad the works of our creative authors.

Finally, the comprehensive 1976 revision of the U.S. copyright law wrought some fundamental changes in American copyright that made our law, in principle, much more like the copyright laws of the Berne countries. Under the present U.S. law, copyright arises in a work upon its creation and fixation. It generally endures for the life of the author and 50 years after death. The role of formalities is greatly diminished, and the manufacturing clause is due to expire in 1986. Even though there are these basic major areas of correspondence, there are still some points of variance between the United States law and the standards of the Berne Convention, and some adjustments to the U.S. law will be required.

At the September 12, 1984, meeting of the Department of State's International Copyright Advisory Panel, the private sector representatives were unanimous in their support for adherence to the Berne Convention. Both proprietors and users of copyrighted works agreed that, in principle, membership in the Berne Union was an issue whose time had come. Traditional opponents of Berne membership have reevaluated their positions. For example, even though motion picture interests traditionally opposed Berne membership