Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886.[1]

For other uses, see Berne Convention (disambiguation).

Berne Convention
  Map of parties to the Convention
Signed9 September 1886
LocationBerne, Switzerland
Effective5 December 1887
Condition3 months after exchange of ratifications
Parties179
DepositaryDirector General of the World Intellectual Property Organization
LanguagesFrench (prevailing in case of differences in interpretation) and English, officially translated in Arabic, German, Italian, Portuguese and Spanish
Convention for the Protection of Literary and Artistic Works at Wikisource

The Berne Convention formally mandated several aspects of modern copyright law; it introduced the concept that a copyright exists the moment a work is "fixed", rather than requiring registration. It also enforces a requirement that countries recognize copyrights held by the citizens of all other parties to the convention.

Content

The Berne Convention requires its parties to treat the copyright of works of authors from other parties to the convention (known as members of the Berne Union) at least as well as those of its own nationals. For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

In addition to establishing a system of equal treatment that harmonised copyright amongst parties, the agreement also required member states to provide strong minimum standards for copyright law.

Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration. However, when the United States joined the Convention on 1 March 1989,[2] it continued to make statutory damages and attorney's fees only available for registered works.

However, Moberg v Leygues (a 2009 decision of a Delaware Federal District Court) held that the protections of the Berne Convention are supposed to essentially be "frictionless", meaning no registration requirements can be imposed on a work from a different Berne member country. This means Berne member countries can require works originating in their own country to be registered and/or deposited, but cannot require these formalities of works from other Berne member countries.[3]

Applicability

Under Article 3, the protection of the Convention applies to nationals and residents of countries that are party to the convention, and to works first published or simultaneously published (under Article 3(4), "simultaneously" is defined as "within 30 days"[4]) in a country that is party to the convention.[4] Under Article 4, it also applies to cinematic works by persons who have their headquarters or habitual residence in a party country, and to architectural works situated in a party country.[5]

Country of origin

The Convention relies on the concept of "country of origin". Often determining the country of origin is straightforward: when a work is published in a party country and nowhere else, this is the country of origin. However, under Article 5(4), when a work is published simultaneously in several party countries (under Article 3(4), "simultaneously" is defined as "within 30 days"[4]), the country with the shortest term of protection is defined as the country of origin.[6]

For works simultaneously published in a party country and one or more non-parties, the party country is the country of origin. For unpublished works or works first published in a non-party country (without publication within 30 days in a party country), the author's nationality usually provides the country of origin, if a national of a party country. (There are exceptions for cinematic and architectural works.)[6]

In the Internet age, unrestricted publication online may be considered publication in every sufficiently internet-connected jurisdiction in the world. It is not clear what this may mean for determining "country of origin". In Kernel v. Mosley (2011), a U.S. court "concluded that a work created outside of the United States, uploaded in Australia and owned by a company registered in Finland was nonetheless a U.S. work by virtue of its being published online". However other U.S. courts in similar situations have reached different conclusions, e.g. Håkan Moberg v. 33T LLC (2009).[7] The matter of determining the country of origin for digital publication remains a topic of controversy among law academics as well.[8]

The Berne Convention states that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death, but parties are free to provide longer terms,[9] as the European Union did with the 1993 Directive on harmonising the term of copyright protection. For photography, the Berne Convention sets a minimum term of 25 years from the year the photograph was created, and for cinematography the minimum is 50 years after first showing, or 50 years after creation if it hasn't been shown within 50 years after the creation. Countries under the older revisions of the treaty may choose to provide their own protection terms, and certain types of works (such as phonorecords and motion pictures) may be provided shorter terms.

If the author is unknown because for example the author was deliberately anonymous or worked under a pseudonym, the Convention provides for a term of 50 years after publication ("after the work has been lawfully made available to the public"). However, if the identity of the author becomes known, the copyright term for known authors (50 years after death) applies.[9]

Although the Berne Convention states that the copyright law of the country where copyright is claimed shall be applied, Article 7(8) states that "unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work",[9] i.e., an author is normally not entitled a longer copyright abroad than at home, even if the laws abroad give a longer term. This is commonly known as "the rule of the shorter term". Not all countries have accepted this rule.

The minimum standards of protection relate to the works and rights to be protected

As to works, protection must include "every production in the literary, scientific and artistic domain, whatever the mode or form of its expression" (Article 2(1) of the Convention).

Subject to certain allowed reservations, limitations or exceptions, the following are among the rights that must be recognized as exclusive rights of authorization:

  • the right to translate,
  • the right to make adaptations and arrangements of the work,
  • the right to perform in public dramatic, dramatico-musical and musical works,
  • the right to recite literary works in public,
  • the right to communicate to the public the performance of such works,
  • the right to broadcast (with the possibility that a Contracting State may provide for a mere right to equitable remuneration instead of a right of authorization),
  • the right to make reproductions in any manner or form (with the possibility that a Contracting State may permit, in certain special cases, reproduction without authorization, provided that the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author; and the possibility that a Contracting State may provide, in the case of sound recordings of musical works, for a right to equitable remuneration),
  • the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work.

The Berne Convention includes a number of specific copyright exceptions, scattered in several provisions due to the historical reason of Berne negotiations. For example, Article 10(2) permits Berne members to provide for a "teaching exception" within their copyright statutes. The exception is limited to a use for illustration of the subject matter taught and it must be related to teaching activities.[10]

In addition to specific exceptions, the Berne Convention establishes the "three-step test" in Article 9(2), which establishes a framework for member nations to develop their own national exceptions. The three-step test establishes three requirements: that the legislation be limited to certain (1) special cases; (2) that the exception does not conflict with a normal exploitation of the work, and (3) that the exception does not unreasonably prejudice the legitimate interests of the author.

The Berne Convention does not expressly reference doctrines such as fair use or fair dealing, leading some critics of fair use to argue that fair use violates the Berne Convention.[11][11][12] However, the United States and other fair use nations argue that flexible standards such as fair use include the factors of the three-step test, and are therefore compliant. The WTO Panel has ruled that the standards are not incompatible.[13]

The Berne Convention also fails to include Internet safe harbors, as is common in many countries. However, the Agreed Statement of the parties to the WIPO Copyright Treaty of 1996 states that: "It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention."[14] This language may mean that Internet service providers are not liable for the infringing communications of their users.[14]

Critics have argued for years that the Berne Convention is weak in protecting users and consumers from overbroad or harsh infringement claims, with virtually no other exceptions or limitations.[15] In fact, the Marrakesh Copyright Exceptions Treaty for the Blind and Print-Disabled was the first international treaty centered around the rights of users. Treaties featuring exceptions for libraries and educational institutions are also being discussed.

History
The Pirate Publisher—An International Burlesque that has the Longest Run on Record, from Puck, 1886, satirizes the ability of publishers to take works from one country and publish them in another without paying the original authors.

The Berne Convention was developed at the instigation of Victor Hugo[16] of the Association Littéraire et Artistique Internationale.[17] Thus it was influenced by the French "right of the author" (droit d'auteur), which contrasts with the Anglo-Saxon concept of "copyright" which only dealt with economic concerns.[18] Under the Convention, copyrights for creative works are automatically in force upon their creation without being asserted or declared. An author need not "register" or "apply for" a copyright in countries adhering to the Convention. As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work and to any derivative works, unless and until the author explicitly disclaims them or until the copyright expires. Foreign authors are given the same rights and privileges to copyrighted material as domestic authors in any country that ratified the Convention.

Before the Berne Convention, copyright legislation remained uncoordinated at an international level.[19] So for example a work published in Great Britain by a British national would be covered by copyright there but could be copied and sold by anyone in France. Dutch publisher Albertus Willem Sijthoff, who rose to prominence in the trade of translated books, wrote to Queen Wilhelmina of the Netherlands in 1899 in opposition to the convention over concerns that its international restrictions would stifle the Dutch print industry.[20]

The Berne Convention followed in the footsteps of the Paris Convention for the Protection of Industrial Property of 1883, which in the same way had created a framework for international integration of the other types of intellectual property: patents, trademarks and industrial designs.[21]

Like the Paris Convention, the Berne Convention set up a bureau to handle administrative tasks. In 1893 these two small bureaux merged and became the United International Bureaux for the Protection of Intellectual Property (best known by its French acronym BIRPI), situated in Berne.[22] In 1960, BIRPI moved to Geneva, to be closer to the United Nations and other international organizations in that city.[23] In 1967 it became the World Intellectual Property Organization (WIPO), and in 1974 became an organization within the United Nations.[22]

The Berne Convention was completed in Paris in 1886, revised in Berlin in 1908, completed in Berne in 1914, revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979.[24]

The World Intellectual Property Organization Copyright Treaty was adopted in 1996 to address the issues raised by information technology and the Internet, which were not addressed by the Berne Convention.[25]

Adoption and implementation

The first version of the Berne Convention treaty was signed on 9 September 1886, by Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia, Spain, Switzerland, and Tunisia.[26] They ratified it on 5 September 1887.[27]

Although Britain ratified the convention in 1887, it did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act 1988.

The United States acceded to the convention on 16 November 1988, and the convention entered into force for the United States on 1 March 1989.[28][27] The United States initially refused to become a party to the Convention, since that would have required major changes in its copyright law, particularly with regard to moral rights, removal of the general requirement for registration of copyright works and elimination of mandatory copyright notice. This led first to the U.S. ratifying the Buenos Aires Convention (BAC) in 1910, and later the Universal Copyright Convention (UCC) in 1952 to accommodate the wishes of other countries. With the WIPO's Berne revision on Paris 1971,[29] many other countries joined the treaty, as expressed by Brazil federal law of 1975.[30]

On 1 March 1989, the U.S. Berne Convention Implementation Act of 1988 was enacted, and the U.S. Senate advised and consented to ratification of the treaty, making the United States a party to the Berne Convention,[31] and making the Universal Copyright Convention nearly obsolete.[32] Except for extremely technical points not relevant, with the accession of Nicaragua in 2000, every nation that is a member of the Buenos Aires Convention is also a member of Berne, and so the BAC has also become nearly obsolete and is essentially deprecated as well.

Since almost all nations are members of the World Trade Organization, the Agreement on Trade-Related Aspects of Intellectual Property Rights requires non-members to accept almost all of the conditions of the Berne Convention.

As of September 2020, there are 179 states that are parties to the Berne Convention. This includes 176 UN member states plus the Cook Islands, the Holy See and Niue.

Prospects for future reform

The Berne Convention was intended to be revised regularly in order to keep pace with social and technological developments. It was revised seven times between its first iteration (in 1886) and 1971, but has seen no substantive revision since then.[33] That means its rules were decided before widespread adoption of digital technologies and the internet. In large part, this lengthy drought between revisions comes about because the Treaty gives each member state the right to veto any substantive change. The vast number of signatory countries, plus their very different development levels, makes it exceptionally difficult to update the Convention to better reflect the realities of the digital world.[34] In 2018, Professor Sam Ricketson argued that 'you're dreaming' if you think further revision will ever be realistic.[35]

Berne members also cannot easily create new copyright treaties to address the digital world's realities, because the Berne Convention also prohibits treaties that are inconsistent with its precepts.[36] 'Denouncing' or walking away from the treaty is not a realistic option for most nations either, because membership of Berne is a pre-condition for membership of the World Trade Organization.

Legal academic Dr Rebecca Giblin has argued that one reform avenue left to Berne members is to 'take the front door out'. The Berne Convention only requires member states to obey its rules for works published in other member states - not works published within its own borders. Thus member nations may lawfully introduce domestic copyright laws that have elements prohibited by Berne (such as registration formalities), so long as they only apply to their own authors. Giblin also argues that these should only be considered where the net benefit would be to benefit authors.[37]

List of countries and regions that are not signatories to the Berne Convention

[2]

gollark: I can't believe this discord server actually reminded me of a real security issue I had forgotten about.
gollark: Looks like I'm going to be figuring out what express.js has for CSRF issues, yaaay.
gollark: Or nocors fetch.
gollark: Or add a link and click it.
gollark: I've got a simple local webapp thing which does use a few forms, probably should secure that.

See also

References
  1. "WIPO - Berne Convention for the Protection of Literary and Artistic Works".
  2. Circular 38A: International Copyright Relations of the United States (PDF). U.S. Copyright Office. 2014. p. 2. Retrieved 5 March 2015.
  3. Borderless Publications, the Berne Convention, and U.S. Copyright Formalities, Jane C. Ginsburg, The Media Institute, 20 October 2009, https://www.mediainstitute.org/2009/10/20/borderless-publications-the-berne-convention-and-u-s-copyright-formalities/ (Retrieved 18 May 2018)
  4. Berne Convention Archived 23 May 2018 at the Wayback Machine.
  5. Berne Convention Archived 23 May 2018 at the Wayback Machine.
  6. Berne Convention Archived 23 May 2018 at the Wayback Machine.
  7. Fitzgerald, Brian F., Shi, Sampsung Xiaoxiang, Foong, Cheryl, & Pappalardo, Kylie M. (2011), "Country of Origin and Internet Publication : Applying the Berne Convention in the Digital Age". Journal of Intellectual Property (NJIP) Maiden Edition, pp. 38–73.
  8. See for example the columns of Jane Ginsburg: And the article
  9. Berne Convention Article 7.
  10. Drier, Thomas; Hugenholtz, P. Bernt (2016). Concise European Copyright Law (2 ed.). Wolters Kluwer.
  11. "Toward an International Fair Use Doctrine". heinonline.org. Retrieved 3 August 2018.
  12. Travis, Hannibal (2008). "Opting Out of the Internet in the United States and the European Union: Copyright, Safe Harbors, and International Law". Notre Dame Law Review, vol. 84, p. 383. President and Trustees of Notre Dame University in South Bend, Indiana. SSRN 1221642.
  13. See United State - Section 110(5) of the U.S. Copyright Act.
  14. Travis, p. 373.
  15. There Can Be No 'Balance' In The Entirely Unbalanced System Of Copyright – Techdirt, Mike Masnick, 1 March 2012
  16. "Quick Berne Convention Overview". Laws.com. Retrieved 12 June 2018.
  17. Dutfield, Graham (2008). Global Intellectual Property Law. Edward Elger Pub. pp. 26–27. ISBN 978-1-843769422.
  18. Baldwin, Peter (2016). The Copyright Wars: Three Centuries of Trans-Atlantic Battle. Princeton University Press. p. 15. ISBN 978-0-691169095.
  19. "A Brief History of Copyright". Intellectual Property Rights Office.
  20. "The Netherlands and the Berne Convention". The Publishers' circular and booksellers' record of British and foreign literature, Vol. 71. Sampson Low, Marston & Co. 1899. p. 597. Retrieved 29 August 2010.
  21. "Summary of the Paris Convention for the Protection of Industrial Property (1883)". World Intellectual Property Organization. Retrieved 30 June 2018.
  22. "WIPO - A Brief History". World Intellectual Property Organization. Retrieved 12 June 2018.
  23. Cook, Curtis (2002). Patents, Profits & Power: How Intellectual Property Rules the Global Economy. p. 63. ISBN 978-0-749442729.
  24. "Berne Convention for the Protection of Literary and Artistic Works". World Intellectual Property Organization. Archived from the original on 23 May 2018. Retrieved 12 June 2018.
  25. "WIPO Copyright Treaty". World Intellectual Property Organization. Retrieved 12 June 2018.
  26. Solberg, Thorvald (1908). Report of the Delegate of the United States to the International Conference for the Revision of the Berne Copyright Convention, Held at Berlin, Germany, 14 October to 14 November 1908. Washington, D.C.: Library of Congress. p. 9.
  27. "Contracting Parties > Berne Convention (Total Contracting Parties : 173)". WIPO - World Intellectual Property Organization. WIPO. Retrieved 4 April 2017.
  28. "Treaties in Force – A List of Treaties and Other International Agreements of the United States in Force on January 1, 2016" (PDF). www.state.gov.
  29. WIPO's "Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)", http://zvon.org/law/r/bern.html
  30. Brazilian's Federal Decree No. 75699 6 May 1975. urn:lex:br:federal:decreto:1975;75699
  31. Molotsky, Irvin (21 October 1988). "Senate Approves Joining Copyright Convention". The New York Times. Retrieved 22 September 2011.
  32. Fishman, Stephen (2011). The Copyright Handbook: What Every Writer Needs to Know. Nolo Press. p. 332. ISBN 978-1-4133-1617-9. OCLC 707200393. The UCC is not nearly as important as it used to be. Indeed, it's close to becoming obsolete
  33. "Berne Convention for the Protection of Literary and Artistic Works". World Intellectual Property Organisation.
  34. Ricketson, Sam (2018). "The International Framework for the Protection of Authors: Bendable Boundaries and Immovable Obstacles". Columbia Journal of Law & the Arts. 41: 341, 348–352.
  35. Ricketson, Sam (2018). "The International Framework for the Protection of Authors: Bendable Boundaries and Immovable Obstacles". Columbia Journal of Law & the Arts. 41: 341, 353 (2018) (citing iconic Australian film "The Castle").
  36. Berne Convention, Article 20.
  37. Giblin, Rebecca (2019). A Future of International Copyright? Berne and the Front Door Out. Cambridge: Cambridge University Press. SSRN 3351460.
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