PROTECTION OF INNOVATION AND CREATIVITY, THE UNITED STATES WILL
STAND TO LOSE A GREAT DEAL.

AND WHILE THE BERNE CONVENTION SPEAKS ONLY OF COPYRIGHT
PROTECTION, IT IS THE OLDEST INSTRUMENT OF ITS KIND IN THE WORLD
AND AN INDICATOR OF THE WILLINGNESS OF THE INTERNATIONAL
COMMUNITY TO TAKE SERIOUSLY THE PROBLEM OF PROTECTING CREATIVITY.

SOME OF THE HISTORIC OBJECTIONS TO ADHERENCE TO THE BERNE
CONVENTION WERE BASED ON A PERCEPTION THAT IT MAY HAVE WEIGHED
THE INTERESTS OF COPYRIGHT OWNERS TOO HEAVILY AND THE INTERESTS
OF USERS AND THE PUBLIC TOO LIGHTLY.

THE NEED TO BALANCE PROPRIETARY INTERESTS ON THE ONE HAND
AND CONSUMER INTERESTS ON THE OTHER IS A FUNDAMENTAL ONE, AND THE
VIRTUAL REVOLUTION IN NEW TECHNOLOGY HAS HEIGHTENED THE NEED FOR
PUBLIC CONFIDENCE IN THE FAIRNESS OF THAT BALANCING.

THE COMPUTER CHIP PROTECTION LEGISLATION WHICH WE ADOPTED
LAST YEAR IS A VERY GOOD EXAMPLE OF THE PROBLEM. THIS IS
TECHNOLOGY THAT HAS FOREVER CHANGED THE WAY WE STORE AND TRANSMIT

INFORMATION, THE WAY WE DESIGN TOOLS, THE WAY WE ANALYZE DATA
FROM OUTER SPACE, AND THE WAY WE CONDUCT NEARLY ALL OF OUR
TRANSACTIONS IN BUSINESS.

YET BEFORE LAST YEAR NO ONE COULD SAY FOR CERTAIN WHETHER
THIS REVOLUTIONARY DEVICE FELL WITHIN THE AMBIT OF COPYRIGHT OR
PATENT LAW. WAS THE COMPUTER CHIP A LITERARY WORK OR AN
INVENTION?

IN THE END WE HAD TO FASHION A NEW REGIME OF PROTECTION THAT
REWARDED INNOVATION BUT DID NOT NEGLECT THE INTERESTS OF BOTH
THOSE WHO NEEDED ACCESS TO THE MOST MODERN IMPROVEMENTS IN CHIP
TECHNOLOGY AND THOSE WHO WOULD FACE UNDUE RISKS IF THEY BROUGHT
SIMILAR, BUT NON-INFRINGING TECHNOLOGY INTO THE MARKETPLACE.

WE HAVEN'T SEEN THE END OF PROPRIETARY RIGHTS PROBLEMS

GENERATED BY NEW TECHNOLOGY.

WE'VE HARDLY SEEN THE BEGINNING.

AND SO WE WILL BEGIN OUR VIEW OF THE BERNE CONVENTION WITH THE

CONVICTION THAT THE INTERNATIONAL COMMUNITY HAS A DEEP AND REAL

STAKE

AS NEVER BEFORE

IN A REGIME OF COPYRIGHT LAW WITH

SIGNIFICANT ELEMENTS OF UNIFORMITY, BUT THAT THE UNITED STATES

HAS A NEED

--

NO LESS IMPORTANT

CREATORS WITH THOSE OF CONSUMERS.

TO BALANCE THE RIGHTS OF

THERE ARE SOME SPECIFIC ISSUES GERMANE TO THE TEXT OF THE

BERNE CONVENTION THAT WE OUGHT TO CONSIDER.

OUR PRESENT COPYRIGHT LAW REQUIRES NOTICE THAT THE WORK IS
UNDER COPYRIGHT, AND EVEN AFTER THE 1976 REWRITE OF OUR LAW, THIS
PROVISION STILL IS INCONSISTENT WITH THE BERNE CONVENTION

PROHIBITION AGAINST SUCH FORMALITIES.

THE REQUIREMENT THAT A WORK BE REGISTERED WITH THE COPYRIGHT
OFFICE PRIOR TO BRINGING AN INFRINGEMENT SUIT IS VERY LIKELY
PROHIBITED BY THE CONVENTION.

--

THE REQUIREMENT

A THIRD REQUIREMENT IN OUR LAW THAT IS INCONSISTENT WITH
BERNE IS THE SO-CALLED MANUFACTURING CLAUSE
THAT CERTAIN WORKS PRODUCED BY AMERICANS BE FIRST PRINTED
DOMESTICALLY. WHEN THIS CLAUSE WAS DUE TO EXPIRE IN 1982 WE
LEARNED THAT THERE WERE MANY WHO CONSIDERED THIS PROVISION
ESSENTIAL TO THE HEALTH OF THE AMERICAN BOOK PRINTING INDUSTRY.

FINALLY, OUR LAW CONTAINS A REQUIREMENT THAT COPYRIGHT
OWNERS DEPOSIT TWO COPIES OF THEIR WORK WITH THE LIBRARY OF
CONGRESS.

THIS DEPOSIT REQUIREMENT IS CRITICAL TO THE MAINTENANCE BY
THE LIBRARY OF CONGRESS OF A COMPLETE COLLECTION OF ALL
COPYRIGHTED WORKS. ANY CHANGE IN OUR LAW THAT WOULD THREATEN

THIS COMPLETENESS WOULD FRANKLY HAVE TO HAVE VERY STRONG

JUSTIFICATION.

THE UNITED STATES HAS ADHERED TO THE UNIFORM COPYRIGHT

CONVENTION, ANOTHER IMPORTANT MULTILATERAL COPYRIGHT TREATY,
WHICH ALLOWS ALL FOUR OF THESE SPECIAL PROVISIONS IN THE UNITED
STATES COPYRIGHT LAW.

AND WHAT WE MUST NOW CONSIDER IS WHETHER THE INTERESTS OF
AMERICAN PARTICIPATION IN BERNE OUTWEIGH THE ONGOING NEEDS OF
U. S. COPYRIGHT OWNERS AND CONSUMERS UNDER THE CURRENT AMERICAN
LAW, AS PERMITTED BY THE UCC.

THE COMMITTEE IS FORTUNATE TO BEGIN THESE HEARINGS WITH THE TESTIMONY OF DR. ARPAD BOGSCH, THE DIRECTOR GENERAL OF THE WORLD INTELLECTUAL PROPERTY ORGANIZATION. FOR MORE THAN THREE DECADES,

DR. BOGSCH HAS BEEN A CENTRAL FIGURE IN PROMOTING INTERNATIONAL
PROTECTION OF INTELLECTUAL PROPERTY. WE CAN BEGIN THESE HEARINGS
WITH NO ONE MORE KNOWLEDGEABLE THAN DR. BOGSCH ABOUT THE
POTENTIAL BENEFITS WHICH CAN RESULT FROM THE U. S. JOINING THE
BERNE UNION AS WELL AS THE MANY LEGAL OBSTACLES WE WOULD FACE IF
WE CHOSE TO MOVE IN THAT DIRECTION. I AM LOOKING FORWARD TO HIS

TESTIMONY.

Senator MATHIAS. Thank you very much, Senator Leahy. You speak with becoming modesty, as befits a Vermonter. [Laughter.] Senator LEAHY. I am not sure-I want to read that in the record a couple of times [laughter] before I find out whether this Yankee has just been pilloried or not on that one.

Senator MATHIAS. No; it was not said in jest at all. I know that Winston Churchill once heard Clement Atley praised as a modest man and said yes, he had a great deal to be modest about. [Laughter.]

But I was thinking instead of those sterling Yankee virtues of frugality and humility and industry.

Dr. Bogsch.

STATEMENT OF DR. ARPAD BOGSCH, DIRECTOR GENERAL, WORLD INTELLECTUAL PROPERTY ORGANIZATION, GENEVA, SWITZERLAND

Dr. BOGSCH. Mr. Chairman, Senator Mathias, Senator Leahy, I thank you most sincerely for having invited me to testify before your subcommittee.

No instance in the United States of America is more important to the World Intellectual Property Organization than your subcommittee since it is here, essentially, that the treaty-making efforts of

the World Intellectual Property Organization must receive approval. It is your approval that makes the fruits of those efforts applicable in that country in the world which produces, and exports, the highest number of inventions, trademarks, and literary and artistic works eligible for intellectual property protection.

In this testimony, I shall try to answer the question why the United States of America should become a party to the Berne Convention for the Protection of Literary and Artistic Works. Why should it become a party to the Berne Convention when it already is a party to another multilateral treaty in the field of copyright, the Universal Copyright Convention?

These questions are all the more justified since the two multilateral treaties have, with the exception of the United States of America and the Soviet Union that are outside the Berne Convention, almost the same membership and since the basic principle is the same in both conventions; namely, that each contracting country must grant the same protection to the nationals of the other contracting countries as it does, under its national law, to its own nationals.

But there is a difference, and a very important difference, between the two conventions. Although each convention contains rules on what the minimum protection to be granted by each country is, the level of that minimum is much higher in the Berne Convention than what it is in the Universal Copyright Convention. For example, the Berne Convention requires the recognition of rights in the case of broadcasting and the right of making motion pictures of published works. These rights are not part of the minimum under the Universal Copyright Convention. This is why, for example, the Soviet Union, a country party to the Universal Copyright Convention but not to the Berne Convention, has a clear right not to grant such rights to United States works.

Another difference between the two conventions is that whereas the Universal Copyright Convention is administered by Unesco, the Berne Convention is administered by the World Intellectual Property Organization.

Now, I shall try to answer the question I started out with.

The main reason for which the United States of America should, in my opinion, decide to become a member of the Berne Convention is that, as a member of that convention, the United States will be able to exercise leadership in the world for a strong, high-level copyright protection. It will be able to exercise leadership that such a strong protection continue and be developed, where necessary, particularly in the event of changing technological circumstances. Copyright is for the most part in private hands. It is private property par excellence. In every country, much of the works protected by copyright are of foreign origin. In many countries, private property, particularly if belonging to foreigners, is not viewed with much sympathy by governments. Firm political will and a strong overall position are needed to preserve the respective copyright.

The Berne Convention is a coalition of states determined to have such respect for copyright. But the strongest potential member of such a coalition, the United States of America, is not a member of the coalition. Thus, the result that one can expect from U.S. mem

bership in the Berne Convention is that a high level of copyright protection, in international relations, can be maintained. This is of utmost importance for the U.S. authors and U.S. motion picture, broadcasting, publishing and other copyright industries, since much of their income comes, or should come, from abroad.

Accession by the United States of America to the Berne Convention will not change the present situation. The balance of payment of the country will not change. Foreigners will not have any more rights than heretofore, and American users of the foreign works protected by copyright will not have to pay more for them than they pay now. Neither will American owners of copyright earn, overnight, more abroad than they do today. The latter will, but only in the future, change favorably if other countries imitate the United States of America, become members of the Berne Convention and will, consequently, have to raise the level of protection they give now to foreigners.

Furthermore, for joining the Berne Convention, the United States of America will not have to raise the present level of the protection it grants. The present protection will remain the same in its economic impact as it is today even if the only provision that seems to be, at least theoretically, at a lower level than required by the Berne Convention-the rights in juke box performanceswould be upgraded. But even such upgrading does not seem to be indispensable.

On the other hand, once the United States of America is a party to the Berne Convention, it will have a much better moral standing to preach to foreign countries which, for example, are the centers of counterfeit, piratical copies of protected works. Today such countries may say to the United States of America: "Why do you preach to us of Berne-level protection when you, yourself, are not a party to the Berne Convention?"

It is not true, as everybody knows it, that the United States of America is a party only to the Universal Copyright Convention as is the Soviet Union, because it has a level of protection that is compatible only with the low level required by the Universal Copyright Convention. The level of protection in the United States of America is much higher than what is required by the Universal Copyright Convention. It is on the level required by the Berne Convention.

The only real difference-and that has nothing to do with the level of protection-that makes the U.S. law incompatible with the Berne Convention consists in the notice and registration requirements. One can solve that in two ways: make compliance with those two requirements voluntary rather than mandatory-for any work, or make compliance with those requirements voluntary only for foreign works that would have to be protected under the Berne Convention.

I am convinced that even if the former course is chosen, the flow of free copies of works to the Library of Congress will continue, and the number of registrations in the Copyright Office will continue, so that no one will lose his or her job there because of the advantages that deposit and registration have even without being conditions of copyright protection.