International Copyright

Berne Convention for the Protection of Literary and Artistic Works

When you talk about International Copyright Law, you are in fact referring to the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention for the Protection of Literary and Artistic Works (or Berne Convention for short) is the international agreement on Copyright that was first adopted on September 9th, 1886. Since then, it has been adopted by the member states (countries) of the World Intellectual Property Organization (WIPO). The Berne Convention has 38 articles, with six applying to developing countries.

History

Copyright protection on the international level began by about the middle of the nineteenth century on the basis of bilateral treaties. A number of such treaties providing for mutual recognition of rights were concluded but they were neither comprehensive enough nor of a uniform pattern. The need for a uniform system led to the formulation and adoption on September 9, 1886, of the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention is the oldest international treaty in the field of copyright. It is open to all States. Instruments of accession or ratification are deposited with the Director General of the Intellectual Property Organization (WIPO).

The Berne Convention has been revised several times in order to improve the international system of protection which the Convention provides. Changes have been effected in order to cope with the challenges of accelerating development of technologies in the field of utilization of authors’ works, in order to recognize new rights as also to allow for appropriate revisions of established ones. The first major revision took place in Berlin in 1908, and this was followed by the revisions in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971.

The purpose of the Stockholm revision was to provide for rapid technological developments as well as the needs of newly independent developing countries, and to introduce administrative and structural changes. As for the preferential provisions for developing countries worked out in Stockholm, these were further taken up at the Paris Revision Conference in 1971, where new compromises were worked out.

The aim of the Berne Convention, as indicated in its preamble, is “to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works.” Article 1 lays down that the countries to which the Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.

Principal Provisions

Basic Principles

The Convention rests on three basic principles:

1. There is the principle of “national treatment”, according to which works originating in one of the member states are to be given the same protection in each of the member states as these grant to works of their own nationals; in other words if you create a work in the United States for example, it is automatically protected in the UK under the copyright laws of the UK, and vice versa.
2. There is automatic protection, according to which such national treatment is not dependent on any formality; in other words protection is granted automatically and is not subject to the formality of registration, deposit, or the like.
3. There is independence of protection, according to which enjoyment and exercise of the rights granted is independent of the existence of protection in the country of origin of the work.

Works Protected

Article 2 contains a non-limitative (illustrative and not exhaustive) list of such works, which include any original production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression. Derivative works, that is those based on other pre-existing works, such as translations, adaptations, arrangements of music and other alterations of a literary or artistic work, receive the same protection as original works (Article 2(3)). The protection of some categories of works is optional; thus every State party to the Berne Convention may decide to what extent it wishes to protect official texts of a legislative, administrative and legal nature (Article 2(4)), works of applied art (Article 2(7)), lectures, addresses and other oral works (Article 2bis(2)) and works of folklore (Article 15(4)). Furthermore, Article 2(2) provides for the possibility of making the protection of works or any specified categories thereof subject to their being fixed in some material form. For instance, protection of choreographic works may be dependent on their being fixed in some form.

One of the important provisions is the one that covers works or expressions of what is called “folklore.” Without mentioning the word, the Convention provides that any member country may give protection to unpublished works where the identity of the author is unknown, but where there is every ground to presume that the author is a national of that country, by designating, through the national legislation, the competent authority which should represent the author of unknown identity and protect and enforce his rights in the countries party to the Convention. By providing for the bringing of actions by authorities designated by the State, the Berne Convention offers to countries whose folklore is a part of their heritage, a possibility of protecting it.

Owners of Rights

Article 2(6) lays down that protection under the Convention is to operate for the benefit of the author and his successors in title. For some categories of works, however, such as cinematographic works (Article 14bis), ownership of copyright is a matter for legislation in the country where protection is claimed; in other words, if there is a contest of who owns a particular copyright, the case will be handled in the country that first issued the copyright and not in the country where the copyright was contested in.

Persons Protected

Authors of works are protected, in respect of both their unpublished or published works if, according to Article 3, they are nationals or residents of a member country; alternatively, if, not being nationals or residents of a member country, they first publish their works in a member country or simultaneously in a non-member and a member country.

Minimum Standards of Protection

Certain minimum standards of protection have been prescribed relating to the rights of authors and the duration of protection.

Rights Protected

The exclusive rights granted to authors under the Convention include the right of translation (Article 8), the right of reproduction in any manner or form, which includes any sound or visual recording, (Article 9), the right to perform dramatic, dramatico-musical and musical works (Article 11), the right to broadcast and communicate to the public, by wire, rebroadcasting or loudspeaker or any other analogous instrument, the broadcast of the work (Article 11bis), the right of public recitation (Article 11ter), the right to make adaptations, arrangements or other alterations of a work (Article 12) and the right to make cinematographic adaptations and reproductions of a work (Article 14). The so-called “droit de suite” provided for in Article 14ter (concerning original works of art and original manuscripts) is optional and applicable only if legislation in the country to which the author belongs permits.

Independently of the author’s economic rights, Article 6bis provides for “moral rights” — that is, the right of the author to claim authorship of his work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to his honor or reputation.

Limitations

As a sort of counterbalance to the minimum standards of protection there are also other provisions in the Berne Convention limiting the strict application of the rules regarding exclusive right. It provides for the possibility of using protected works in particular cases without having to obtain the authorization of the owner of the copyright and without having to pay any remuneration for such use. Such exceptions, which are commonly referred to as free use of protected works, are included in Article 9(2) (reproduction in certain special cases), Article 10 (quotations and use of works by way of illustration for teaching purposes), Article 10bis (reproduction of newspaper or similar articles and use of works for the purpose of reporting current events) and Article 11bis(3) (ephemeral recordings).

There are two cases where the Berne Convention provides the possibility of compulsory licenses — in Article 11bis(2), for the right to broadcast and communicate to the public, by wire, rebroadcasting or loudspeaker or any other analogous instrument, the broadcast of the work, and Article 13(1) for the right of recording musical works.

As far as the exclusive right of translation is concerned, the Berne Convention offers a choice, in that a developing country may, when acceding to the Convention, make a reservation under the so-called “ten-year rule” (Article 30(2)(b)). This provides for the possibility of reducing the term of protection in respect of the exclusive right of translation; this right, according to the said rule, ceases to exist if the author has not availed himself of it within 10 years from the date of first publication of the original work, by publishing or causing to be published, in one of the member countries, a translation in the language for which protection is claimed.

Duration of Protection

The minimum standards of protection provided for in the Berne Convention also relate to the duration of protection. Article 7 lays down a minimum term of protection, which is the life of the author plus 50 years after his/her death.

There are, however, exceptions to this basic rule for certain categories of works. For cinematographic works, the term is 50 years after the work has been made available to the public, or, if not made available, then 50 years after the making of such a work. For photographic works and works of applied art, the minimum term of protection is 25 years from the making of the work (Article 7(4)).

A majority of countries in the world have legislated for life plus a 50-year term of protection since it is felt fair and right that the lifetime of the author and the lifetime of his children should be covered; this could also provide the incentive necessary to stimulate creativity, and constitute a fair balance between the interests of the authors and the needs of society.

The term of protection, in so far as moral rights are concerned, extends at least until the expiry of the economic rights.

Application in time

The Protection under the Berne Convention is retrospective, since it applies to all works which, at the moment of its coming into force for a specific country, have not yet fallen into the public domain in the country of their origin through the expiry of the term of protection.

Member States

As of September 20th, 2007, there are currently 184 member states in the WIPO, and 163 member states that have adopted the Berne Convention.

The United States and the Berne Convention

The United States implemented the Berne Convention in 1988 under the House Report of the Berne Convention Implementation Act of 1988, H.R. REP. NO. 100-609 (1988).

Objectives

The original Convention was intended to promote five objectives:

1. The development of copyright laws in favor of authors in all civilized countries
2. The elimination over time of basing rights upon reciprocity
3. The end of discrimination in rights between domestic and foreign authors in all countries
4. The abolition of formalities for the recognition and protection of copyright in foreign works
5. Ultimately, the promotion of uniform international legislation for the protection of literary and artistic works

Cardinal Principles

The first Berne Convention was a simple document in which two cardinal principles were established, both of continuing vitality today:

1. The Union: The states adhering to the Convention organized themselves into a Union for the protection of the rights of authors in their literary and artistic works. In forming the Union, the original members contemplated an essentially political as well as legal undertaking: that adherents to the Convention would function as a cooperative unit which would continue in existence regardless of future accessions or withdrawals from the Convention itself.
2. The Rule of National Treatment: One of the cornerstones of international copyright is the rule, first recognized for copyright in the Berne Convention, that authors should enjoy in other countries the same protection for their works as those countries accord their own authors.

Summation

Effectively, the Berne Convention was created so that its member countries would recognize the copyright of works of authors in other member countries in the same way it does in its own country; in other words, if you create a work in the United States for example, it is automatically protected in the UK under the copyright laws of the UK, and vice versa.

Sources

• Berne Convention for the Protection of Literary and Artistic Works
• WIPO
• Full text of the Berne Convention
• WIPO Handbook on Intellectual Property (PDF)
• Berne Convention Contracting Parties
• House Report of the Berne Convention Implementation Act of 1988, H.R. REP. NO. 100-609 (1988) (PDF)