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U.S. Instrument of Accession to the Berne Convention – An Untold Story

U.S. Instrument of Accession to the Berne Convention – An Untold Story by Michael J. Remington

December 6, 2018


This blog is part of our new blog series, the Secret History of Copyright. The series will unlock some of the mysteries of the copyright world – including little-known laws, influencers, cases and much more!


Paving the way for the United States to join the Berne Convention for Literary and Artistic Works through implementing legislation was one of the most important legislative achievements of the 100th Congress (1987-1988). Joining a treaty that provides the world’s highest level of copyright protection was years in the making. Named after the Swiss city where the first meeting was held, the Berne Union was formed in 1886 by ten European nations. An author – Victor Hugo – played a pivotal role in the creation.  In the meanwhile, the Convention was revised on several occasions and amended in 1979. As of February 2018, 175 states have become parties to the Convention, almost 50 of them (including Russia and China) after the United States joined.

Background

Almost one century passed since Berne’s birth and U.S. accession. Attempts were made but without fruition. For example, during the 1930’s President Franklin Roosevelt succeeded in obtaining advice and consent of the Senate to ratify the treaty but three days the Senate rescinded its vote. It took until the Berne centennial year for President Ronald Reagan to send a written message to the Senate. On June 16, 1986, the President expressed a positive view to receiving the advice and consent of the Senate on accession. Based on a report of the State Department, the President nonetheless candidly recognized that implementation of the Convention would require legislation.

Later in the year, Senator Charles “McC” Mathias, Chairman of the Senate Subcommittee with jurisdiction over copyright issues assumed a leadership role by introducing legislation and holding a series of hearings to focus debate and create a record. Mathias worked closely with his counterpart, Representative Bob Kastenmeier, who chaired a House Judiciary Subcommittee with equivalent jurisdiction. Mathias and Kastenmeier shared respect for each other. In fact, they were friends.

In 1987, with the onset of a new Congress, a senior House Republican (Representative Carlos Moorhead) introduced a bill on behalf of the Reagan Administration. On a bipartisan basis, legislation was drafted by Representative Kastenmeier in the House and Senator Patrick Leahy in the Senate in the form of the “Berne Convention Implementation Act”. Years earlier Kastenmeier had led the way in the monumental Copyright Revision of 1976 which partially paved the way for Berne membership. Extensive hearings were held in the House and Senate. The U.S. Copyright Office, the U.S. Department of Commerce, and the U.S. Department of State provided substantive input. Thereafter, congressional leadership determined that U.S. adherence to Berne only required “minimalist” amendments to the Copyright Act. With unanimous votes in both bodies, the legislation was enrolled and sent to President Reagan. On October 31, 1988, the President held a public signing ceremony in Los Angeles at the Beverly Hilton Hotel attended by elected officials, members of the artistic community and the press. At the time, Berne counted 77 countries as members. Prior to the ceremony, on October 20th, two-thirds of the Senate gave advice and consent for the U.S. to join the Berne Convention. President Reagan’s work, however, was not over. On November 3rd, President Reagan signed an “Instrument of Accession” and caused the Seal of the United States of America to be affixed to the document. Secretary of State, George Schultz, co-signed. First used in 1782, the Seal is reserved for treaties and other high-level documents. It represents a symbol of American independence and self-governance. With the signatories of President Reagan and Secretary Schultz, the Berne legal document was stamped with red wax and adorned with a colorful ribbon. For the copyright community, it was a beautiful artistic work.

On a sad note, on the day after his House testimony in favor of Berne accession, the Secretary of Commerce (Malcolm Baldrige) died as the result of a rodeo accident. Kastenmeier wrote a letter to President Reagan, suggesting a signing ceremony in Baldridge’s memory.

An Untold Story

Two essential footsteps remained. Perhaps because these steps transpired outside of an official record (often sought by lawyers and academicians), their history is unknown by all but a handful of insiders. First, concurrently with depositing the Instrument of Accession, the State Department was required to prepare a document indicating the class to which it wished to belong for establishing its contribution towards the budget of the Berne Union. On November 16, 1988, this was accomplished by a letter from the Representative of the United States to the European Office of the United Nations (Geneva) to Dr. Arpad Bogsch, Director General of the World Intellectual Property Organization (WIPO), opting for Class I. Membership in the Berne Union had a minimal monetary price; it was (and still is) a bargain. American authors, the copyright industries, and the public benefit. Second, consistent with protocol, an individual (or individuals) had to be designated to deliver the accession documents to WIPO in Geneva, Switzerland. Representative Robert W. Kastenmeier (D. WI), the chair of the House Judiciary Committee’s Subcommittee that produced the Berne adherence legislation, was asked to head an informal delivery delegation. Due to other commitments, Kastenmeier turned down the invitation and requested that Representative Hamilton Fish, Jr (R. NY), the ranking member of the House Committee and a key player in the legislation be anointed to deliver the Instrument. Fish and Kastenmeier asked Remington (in his capacity as Chief Counsel of the Subcommittee), Ralph Oman (Register of Copyrights), and Margaret Webber (minority counsel to the House Judiciary Committee) to accompany and assist Fish in the Instrument deliverance.

Kastenmeier’s suggestion, which was accepted by the State Department, manifested bedrock bipartisanship and mutual respect (attributes that are near extinction in today’s current environment). Fish was the perfect individual to assume a high-level diplomatic task. The Fish family dynasty had roots in the U.S. dating back to the 17th Century and a tradition of two centuries of high-level public service. Fish, like Kastenmeier, served in the military during World War II. Afterwards, Fish graduated from Harvard University and went on to join the U.S. Foreign Service, being briefly posted as vice consul in Ireland. He returned to his home state of New York and received a law degree from NYU in 1957. Thereafter, he practiced law until his election to the House of Representatives in 1968.

Remington was assigned personal responsibility for the Instrument during transit from Capitol Hill to Geneva. Keeping it safe and sound was, to say the least, stressful. He knew that he would not sleep during a Trans-Atlantic overnight flight. Other issues arose. Representative Fish’s diligent staff was concerned about how the delegation would travel from the House Rayburn Office Building to Dulles Airport to board a commercial aircraft. Because Fish set high standards (he traveled with a Food Lover’s Guide to France by his New York friend, Patricia Wells), a limousine was suggested. Remington told the Fish staff not to worry about transportation. Remington approached his Republican staff counterpart and friend, Tom Mooney, asking whether he could drive the delegation to Dulles. Mooney had a new van with comfortable seating, a table in the back, and plenty of room for baggage. He kindly accepted, stating that he would bring his wife, Melinda, stock the car with a bottle of chilled white wine and appetizers to meet Fish standards, and wear a chauffer’s cap. Knowing that the Congressman had a sense of humor, the plan was kept secret. On the departure day (November 15, 1988), the team congregated in the horseshoe entrance of the Rayburn Building.  Representative Fish arrived with a coterie of staffers who knew the importance of the trip and were still wondering what form of transportation had been arranged. When the Mooney van arrived, Remington indicated that the “rent-a-wreck” vehicle had arrived and was ready for boarding. The Mooney’s descended from their van, bowing to much laughter. By the time, the delegation arrived at the airport, the wine bottle was empty, and the appetizers were devoured.

The flight was uneventful. The Instrument of Accession was protected in a sealed envelope to ensure that it was not damaged en route. Remington was in a quandary about whether he should hold the envelope in his hands like a new-born baby or secretly place it in an over-head bin, in a zippered pocket of his suit bag. He opted for the latter. Upon landing, while still in the aircraft, Remington transferred the envelope to Representative Fish. Awaiting Fish on the tarmac was a contingent of State Department, United Nations, and WIPO officials who seemed more interested in receiving the Instrument than greeting the group. In any event, Fish hand-delivered the Instrument to the requisite officials. Afterwards, he joked that he felt like a substitute football quarterback inserted in a game for one play with instructions to hand-off the ball to a running back. His delivery statement would have to wait. Formalities would come later when the U.S. delegation met at WIPO with Dr. Bogsch and senior staff. Having a flair for diplomacy and history, Fish took out a pen and hand-wrote on the correspondence from the U.S. Charge d’Affaires to Bogsch the following: “Personally delivered to Dr. Bogsch, Director General, WIPO, November 16, 1988. Hamilton Fish, Jr. M.C.” In turn, Bogsch penned “Received with sincere and many thanks. Arpad Bogsch, Geneva, November 16, 1988.” U.S. copyright history was commemorated. It was time to celebrate.

The WIPO Director General hosted a lavish evening, sit-down dinner to celebrate the deposit. Bogsch, a Hungarian by birth turned American public servant, knew how to host a party: before dinner drinks, multiple courses of food, vintage white and red wines, dessert and champagne. Numerous toasts ensued. In sum, Representative Fish stated that he was proud to represent the United States not only in depositing the Instrument of Accession but also in terms of representing the Congress and the White House and being able to predict that the U.S. would reap rewards from Berne membership in that other countries would follow. Bogsch observed that the U.S. accession makes the Berne Convention far more resilient than beforehand to the ever-menacing attempts to erode copyright protection.  Because the U.S. is the leader in addressing social, cultural and technological changes, the Berne Union’s ability to adapt will benefit. In his capacity as Register of Copyrights, Oman observed that for a century previous registers dreamed of this day.

Ever the diplomat, Bogsch later sent Representative Kastenmeier an informative letter describing dinner discussions as revolving around Kastenmeier’s contributions. Dr. Bogsch also commended Kastenmeier as “the main artisan of the conception and passage of the law enabling United States accession” and thanked him for his leadership. Fish, who received remerciments and applause for his personal delivery of the U.S. Accession Instrument seconded the plaudits that his colleague, Bob Kastenmeier, and others in the House and Senate shared.

The next day, Representative Fish expressed a personal priority.  He wanted to visit the Geneva Town Hall, constructed in the 15th Century. According to Fish, the Town Hall had a room named the Salle de l’Alabama, also known as the Alabama Room, where in 1871 his great grandfather, Hamilton Fish (President Grant’s Secretary of State) led the way for a peaceful settlement of a serious monetary dispute between the United States and Great Britain. Monetary claims had been filed by the U.S. for damages caused during the Civil War by ships built in British shipyards against U.S. ships. Through an international arbitration, the claims were settled leading to a treaty and a precedent that stimulated worldwide interest in codifying public international law. The Alabama arbitration was a precursor to the Hague Convention, League of Nations, World Court, and the UN. It also placed Switzerland on the world map as a peaceful forum to resolve disputes. A plaque adorned the Town Hall commemorating the history of great-grandfather Hamilton Fish’s contributions to resolving the Alabama Claims. Visibly, Representative Fish felt the family bonds that spanned more than 100 years and the palpable contributions that his family had made to the international rule of law.

Following deposit of the U.S. accession papers with WIPO, U.S. adherence Berne took effect on March 1, 1989. Accession to Berne strengthened U.S. credibility and augmented bargaining power in the international arena. It also promoted to progress of science to the benefit of authors (Victor Hugo would have been pleased)) and benefitted the copyright industries that are a critical component of the U.S. economy.

Although U.S. Berne membership has now entered its 30th year, this story has never been told before. George Santayana, a poet as well as philosopher, is known for his adage that “those who cannot remember the past are condemned to repeat it.” Walking in the steps of his great-grandfather, Fish remembered and respected the past. He also repeated it for the benefit of U.S. copyright law and international public policy.  His good work was not a condemnation but a contribution.

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