From: sean@sdg.dra.com
Newsgroups: news.admin
Subject: Re: Copyright Deposit Unconstitutional? (was: The Great Floating ...)
Date: 14 Aug 92 04:57:13 CDT
Organization: Data Research Associates, St. Louis MO

In article <1992Aug14.082035.20420@qiclab.scn.rain.com>, leonard@qiclab.scn.rain.com (Leonard Erickson) writes:
> mccoy@ils.nwu.edu (Jim Mccoy) writes:
> 
>>> Not anymore.  Since we've signed Berne our copyright laws are part
>>> of an international treaty & I think it's the executive branch that
>>> would have to void that treaty -- I don't think Congress can.   ;-)
> 
>>Sorry.  The U.S. Constitution, according to article V is "the supreme law
>>of the land".  I believe that it has been established that Congress may not
>>"give away" a power given to it by the Constitution (Con Law was a while
>>ago, so maybe I am wrong...), so the only way to prevent Congress from
>>deciding to do whatever it wants to regarding copyrights and patents is by
>>changing the Constitution.  Last time I checked there was no such amendment
>>pending...
> 
> Recheck your copy of the Constitution. That language is in Article VI,
> Section 2. And it says:
> 
> 	"This Constitution, and the Laws of the United States which
> shall be made in Pursuance thereof; and all Treaties made, or which
> shall be made, under the Authority of the United States, shall be the
> supreme Law of the Land; and the Judges in every State shall be bound
> thereby, any Thing in the Constitution or Laws of any State to the
> Contrary notwithstanding."
>  
> So at this time we have a law which conflicts with a treaty. Since
> we *cannot* change the treaty, we'll have to chanmge the law.

Section 2 of P.L. 100-568:

The Congress makes the following declarations:

  (1) The Convention for the Protection of Literary and Artistic Works,
signed at Berne, Switzerland, on September 9, 1986, and all acts, protocols,
and revisions thereto (hereafter in this Act referred to as the ``Berne
Convention'') are not self-executing under the Constitution and laws of 
the United States.

  (2) The obligations of the United States under the Berne Convention may
be performed only pursuant to appropriate domestic law.

  (3) The amendments made by this Act, together with the law as it exists
on the enactment of this act [Oct, 31, 1988], satisfy the obligations of 
the United States in adhering to the Berne Convention and no further rights
or interests shall be recognized or created for that purpose.

Section 3 of P.L. 100-568:

(a) RELATIONSHIP WITH DOMESTIC LAW. -- The provisions of the Berne Convention

  (1) shall be given effect under title 17, as amended by this Act, and any
other relevant provision of Federal or State law, including the common law;
and

  (2) shall not be enforceable in any action brought pursuant to the provisions
of the Berne Convention itself.

(b) CERTAIN RIGHTS NOT AFFECTED. -- The provisions of the Berne Convention,
the adherence of the United States thereto, and satisfaction of United
States obligations thereunder, do not expand or reduce any right of an author
of a work, whether claimed under Federal, State,  or the common law --

  (1) to claim authorship of the work; or

  (2) to object to any distortion, mutilation, or other modification of, or
other derogatory action in relation to, the work, that would prejudice the
author's honor or reputation.

-- 
Sean Donelan, Data Research Associates, Inc, St. Louis, MO
Domain: sean@sdg.dra.com, Voice: (Work) +1 314-432-1100