International protection of U.S. copyrights - W. Allen Wallis's statement before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Committee, July 23, 1987 - transcript

US Department of State Bulletin, Oct, 1987

International Protection of U.S. Copyrights

Statement before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Committee on July 23, 1987. Mr. Wallis is Under Secretary for Economic Affairs.1

Thank you for this opportunity to present the views of the Department of State on one of the most important questions confronting this government in connection with intellectual property problems, whether the United States should adhere to the Bern Convention for the Protection of Literacy and Artistic Works. The question has an obvious and important relationship to the kind of copyright protection our citizens get abroad. It is also important as a matter of comity to the 76 member states of the Bern convention--most of which have wanted us as a member state.

One hundred and one years ago, the United States was represented at the Bern diplomatic conference only by an observer. Last year in the same room in the Swiss Parliament in which the Bern Convention for the Protection of Literary and Artistic Property was signed in 1886, the 76 member states of that convention celebrated its 100th anniversary. The United States, where more copyrighted materials are produced than in any other nation, was again seated on the sidelines as an observer.

A recent Register of Copyrights, Ms. Barbara Ringer, well-known to this subcommittee, rightly characterized the role of the United States as "strangers at the feast." Far more than any other country, our nation has benefited and our industries have profited from the sound and fair levels of copyright protection Bern provides. We should remain "strangers at the feast" no longer.

I will address three issues: first, why we strongly support adherence to the treaty; second, why we believe that there can be no serious doubt that the treaty is non-self-executing; and, third, why the advantages of Bern membership far outweigh any perceived disadvantages.

U.S. Interest in the Bern Convention

In 1935, Dr. Wallace McClure of the State Department's Office of Treaty Affairs summed up the Department's views on the proposal that the United States should become a member state of the Bern convention. He said:

The business of the Department of State is to negotiate treaties. Another function of the Department of State is to protect American interests in other countries, and the reason why the Department of State has recommended this treaty is because it believes that, through the treaty, it can better protect American interests, so far as copyright is concerned, in other countries, than through any other available instrumentality.

Dr. McClure's statement is just as timely today as it was when he made it over a half a century ago.

From the beginning of the Bern convention a century ago, the United States has blown hot and cold, or at least warm and cool, about this convention. We were invited to participate in the 1886 diplomatic conference, but the Secretary of State declined for the sound reason that foreign works were not protected in the United States under our copyright law. The Department pressed for a change in that policy; and, in 1891, Congress enacted the Chace Act which provided for the first-time protection of foreign works. From then until the mid-1950s, the Department of State sought to establish copyright relations with as many states as possible. Bilateral agreements were concluded with over 30 countries.

During the 1920s and 1930s, increasing use of American copyrighted works led to strong support by private organizations for the adherence of the United States to Bern. A good deal of congressional interest was aroused, but Congress took no action.

A basic foreign policy objective of the United States in the international copyright field has continued to be adherence to the Bern convention. The fact that this country was not a member of the worldwide Bern convention was the principal reason for the negotiation of the Universal Copyright Convention. During the preparatory work for the Universal Copyright Convention, it was clear that the immediate goal was to develop a multilateral copyright agreement to which the United States could adhere. It was also clear that, beyond that immediate goal, the principal negotiators regarded the Universal Copyright Convention as a "bridge" to the long-established Bern convention, not an alternative to it.

The legislative history of the 1976 Copyright Act, enacted under your leadership, Mr. Chairman, shows that one objective of the lengthy and painstaking revision effort was to eliminate major obstacles to U.S. adherence to Bern, for example, the term of protection.

In recent years several developments have reemphasized the issue of U.S. adherence to Bern. One was the withdrawal of the United States in 1984 from UNESCO [United Nations Educational, Scientific and Cultural Organization], the secretariat for the Universal Copyright Convention.

Although our withdrawal from UNESCO had no legal effect on our membership in the Universal Copyright Convention, the long-term effects on the position of the United States in the international copyright field are potentially serious, for the United States no longer participates in the UNESCO general conference which determines the program and budget of the Universal Copyright Convention.