REPORT OF THE SPECIAL JOINT COMMITTEE ON INTER-AMERICAN COPYRIGHTCONVENTIONSource: Proceedings of the Section of International and Comparative Law (American BarAssociation), (SEPTEMBER 22-23, 1947), pp. 52-55Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25742755 .

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52 SECTION OF INTERNATIONAL AND COMPARATIVE LAW

REPORT OF THE SPECIAL JOINT COMMITTEE ON

INTER-AMERICAN COPYRIGHT CONVENTION

At the Atlantic City meeting of the American Bar Association in 1946 the Section of Patent, Trade-Mark and

Copyright Law asked the Association to disapprove this country's ratifica

tion of. the Inter-American Copyright Convention. When the matter was

presented to the House of Delegates

by Mr. Robert C. Watson, then chair man of the Section, Mr. George M.

Morris moved that the matter be re

ferred, without other action at that

time, to the Seetion of International and Comparative Law for report at

the next meeting of the House of Del

egates. This motion was carried.

At the February 1947 meeting of

the House of Delegates the action of

the council of the Section of Interna

tional and Comparative Law recom

mended approval of this country's ratification of the convention. Be cause of the absolute conflict in the

recommendations of the two Sections, motion was made by Mr. Loyd Wright to refer the matter back to both Sec tions for further study and possible reconciliation of views and further

report. On July 10, 1947, a special commit

tee composed of four persons who are

members of both Sections of the Asso

ciations was appointed by letter signed

jointly by the chairman of the Section

of Patent, Trade-Mark and Copyright Law and the chairman of the Section

of International and Comparative Law. In this letter of appointment the committee was asked to reconsider

the entire matter and make recom

mendations to the two Sections at

their meetings to be held in Cleveland in September. Without imposing any limitation on the activities of the com

mittee, the chairmen of the two Sec

tions suggested that it seemed de

sirable to indicate to the committee

the lines along which they believed a

reconciliation of views might be ef fected. The letter of appointment stated :

1. One of the primary objections of the Patent Section to the convention has been the fact that it would create two separate systems of copyright law, one applicable to the nationals of this

country, the other to nationals of par

ticipating countries. It is hoped that this objection can be met by amend

ment of the treaty so that its ratifica tion would itself be effective to change the domestic law.

2. It must be decided what features of the copyright law sought to be put into effect by the convention should be adopted as part of our domestic

law, and what parts of our domestic

law, if any, should not be changed. As examples of changes in domestic law which might be made to harmo nize our law with that sought by the

convention, reference was made to the elimination of the immunity hereto fore enjoyed by juke box operators and to the compulsory licensing rights now enjoyed by phonograph record makers. As an example of a feature of our present law which should prob ably be retained, reference was made to the absence of any liability under

present law for certain performances not made for profit. Such provisions could be retained, it was thought, by suitable reservations at the time of ratification.

3. Another basic objection which has been advanced against the Inter American Convention is that its rati fication would stand in the way of the

subsequent participation by this coun

try in an International Convention, which it is understood may be pro

posed this fall by U.N.E.S.C.O. It was thought that this objection could

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COMMITTEE REPORTS OF INTERNATIONAL LAW DIVISION 53

be taken care of by another reserva

tion permitting the Inter-American Convention and any rights accruing under it to be eliminated in the event

of subsequent adherence to the broader

group. The committee first considered the

features of the Copyright Convention which would represent a radical change from our domestic law, with particular references to the following:

(a) Compulsory licensing for rec ord makers;

(b) Exemption of so-called juke boxes ;

(c) Automatic copyright without the formality of marking and

deposit ; (d) The retention of provision

which requires public perform ance for profit of musical com

positions before they are deemed "infringing presenta tions"; and the possible ex tension of this requirement to all copyrighted works;

(e) Unfair competition in titles; (f) Protection of unpublished

works ;

(g) Preservation of the "moral

rights" of an author.

All members favor amendment of our domestic law to eliminate compul sory licensing for record makers, to

eliminate the exemption of so-called

juke boxes, to extend to all copyright ed works the requirements that public

performance shall not be deemed to

be an "infringing presentation" un

less such performance is for profit, and to provide statutory remedy for

unfair competition in titles in sub

stantially the form set out in the con

vention. With regard to automatic copyright

without the formality of marking and

deposit, one member of the committee was opposed to any form of automatic

copyright on the ground that it is

improper for a government ' ' to create

a right without making a record of

what it covers, the duration of the

right, and the owner of the right." One member of the committee favors automatic copyright provided there is established "a register of some sort so that people who are to be paid for the use of their works can be locat ed. " One member of the committee, while not altogether opposed to auto matic copyright, believes that the pro tection accorded the owner of a copy

right should be limited to an injunc tion unless deposit has been made in accordance with domestic law. One member of the committee favors auto matic copyright as it appears in the

provisions of the convention. With regard to the protection ac

corded by the convention to owners of

unpublished works, three members of the committee feel that the provision in the convention is satisfactory, but the fourth member favors the protec tion of unpublished works according to the domestic law, that is, by deposit of a copy and claim of right, with the

follow-up of a claim filed when the work is actually published.

With regard to preservation of the "moral rights" of an author, three members of the committee favor the convention provisions while the fourth believes that ' * it would be better gov ernment, according to the United States viewpoint, to abolish the 'moral

rights' of an author not to have the work changed by the publisher-licen see. Generally, the author of copy right proprietor is interested mainly in royalties. He should allow the pub lisher-licensee to use his judgment as

to how to present the work to the

public in a form to gain maximum returns. If the author wishes to in

sist upon faithful following of copy, he should be able to arrange by con

tract in either license or sale of the

copyright, for observance of the obli

gation of the publisher or licensee to

secure the author's approval of any

change. ' '

Consideration was given by the com

mittee to three additional questions:

s

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54 SECTION OF INTERNATIONAL AND COMPARATIVE LAW

(a) the effect of the convention on

works in the public domain; (b) the

position of our government with re

gard to the Inter-American Conven

tion in the event of subsequent rati

fication of a general International

Convention through U.N.E.S.C.O; and

(c) whether by protocol the provisions of the convention might be made ap

plicable to our own citizens in the

United States.

With regard to the first of these

questions, the committee adopts the

interpretation of the committee which

recommended ratification to the coun

cil of the Section of International

and Comparative Law as follows:

"The convention is intended to

bring protection to works hereto fore in the public domain in the United States. It should be noted, however, that this applies not to works the copyright in which has

expired but those in which copy right may not have attached by rea son of the fact that Latin American authors offered them for sale in the United States without proper copy right notice. However, this is duly circumscribed in the convention by providing that existing situations of vested rights are not affected. In

deed, no liability shall attach for uses made or acts done in a con

tracting state in connection with

any work prior to the coming into effect of the present convention or 'in respect of the continuance in that state of any utilization lawful

ly undertaken prior to such date in

volving expenditure or contractual

obligation in connection with the

exploitation, production, reproduc tion, circulation or performance of

any such work.'

"Accordingly, when it is stated that *a vast body of rights is re

moved from the heretofore available

public domain/ we must understand this to mean that entirely new un

authorized reproductions or uses of Latin American >> jiks shall not be

permitted. ''

However, the committee believes that

a limit should be placed on the time

within which copyright may be claimed in such works. With regard to the second question,

three members of the committee be

lieve that in the event of subsequent ratification by the United States of

any General International Convention for the Protection of the Rights of the Author in Literary, Scientific and

Artistic Works, such International Convention should supersede the Inter American Convention but without ad

versely affecting the rights thereto fore acquired under the Inter-Ameri can Convention. One member of the committee believes that this reserva tion was unnecessary.

With regard to the third question, the committee was advised by the chairman of the Section of Interna tional and Comparative Law, who is an authority on such procedure, that it is possible by protocol to make the

provisions, of an International Con vention such as the one under consid eration applicable to United States citizens. Two members of the com

mittee were in agreement with this

view; one member did not express an

opinion; and the fourth member dis

agreed with the view. The basis of such disagreement was that

' ' such pro cedure would be an abuse of the treaty

making power; and any change in our domestic law should be made in the usual manner by the introduction of a bill in Congress, consideration

given by both the House and Senate, and the bill passed on the affirmative vote of both Houses.

' '

From the foregoing it is apparent that not only is a compromise between the two Sections of the Association

necessary, but there must also be a

compromise as among the members of the committee. It is therefore recom

mended that the Association adopt the resolution set out at pages 8-9, supra.

No recommendation is made with

respect to the suggestion that by pro tocol the provisions of the convention be made applicable to our own citizens in the United States. It is believed

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COMMITTEE REPORTS OF INTERNATIONAL LAW DIVISION 55

that the question of the extent to which the convention is self-executing should be left open for court determi nation. It is respectfully suggested, however, that the incoming Committee on Copyrights consider the desirabil

ity of bringing our domestic law of

copyrights into conformity with the

provisions of the convention in the event of its ratification.

Respectfully sumbitted, Daphne Robert,

Chairman John A. Dienner Dean S. Edmonds Edward S. Rogers

BEPORT OF THE COMMITTEE ON

INTERNATIONAL DOUBLE TAXATION

Resolution 11

The United States Should Not Collect

Foreign Taxes

The question has been raised at

hearings during the past winter before the Senate Committee on Foreign Re lations concerning the ratification of the convention with France on double

taxation, signed October 18, 1946, as to whether the United States should undertake to enforce finally deter mined French tax claims and apply measures of conservancy in support of those which have not been finally de termined. 2 The language of article 12 of that convention first commits the two states to lend assistance and sup port to each other in the collection of taxes to which the convention and that of July 25, 1939 relate, together with

interest, costs, and additions to taxes and fines not being of a penal charac ter according to the laws of the state

requested, in cases where the taxes are

definitely due according to the laws of the state making the application.

The article then, in part, provides that:

"(2) In the case of an applica tion for enforcement of taxes, rev enue claims of each of the contract

ing states which have been finally

See page 9, supra, for the 3 res olutions proposed by this committee.

2 Report of Hearings on Senate Document y Exec. A. (80th Cong., 1st

Sess.).

determined will be accepted for en forcement by the state to which

application is made and collected in that state in accordance with the laws applicable to the enforcement and collection of its own taxes.

* * * ?

"(4) If the revenue claim has not been finally determined, the state to which application is made will take such measures of conserv ancy (including measures with re

spect to transfer of property of nonresident aliens) as are author ized by its laws for the enforcement of its own taxes." (Emphasis sup plied.)

The seriousness of the matter is shown by the even tighter provisions in article XV of the convention with the Union of South Africa relating to

taxation, signed December 13, 1946.3 This convention was referred on April 24, 1947, by the Senate to its Com mittee on Foreign Relations, but no action has been taken pending the out come of the hearings on the conven tion with France.

Without discussion of the other articles of the South African conven tion (which are to be criticized for what they do not contain rather than for what they do), it should be pointed out that the provisions on collection of taxes in article XV are even more

objectionable than those in article 12

3 Sen. Document, Exec. O (80th Cong., 1st Sess.).

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