Berne Convention

Berne Convention
Berne Convention for the
Protection of Literary and Artistic Works

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Ratifications of the Convention (blue) as of 2012
Signed 9 September 1886
Location Berne, Switzerland
Effective 5 December 1887
Condition 3 months after exchange of ratifications
Parties 170
Depositary Director General of the World Intellectual Property Organization
Languages signed in French (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 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.

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 signatory countries.

Content

The Berne Convention requires its signatories to treat the copyright of works of authors from other signatory countries (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 internationalised copyright amongst signatories, 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 (note however that when the United States joined the Convention 1 March 1989,[1] it continued to make statutory damages and attorney's fees only available for registered works).

Applicability

Under Article 3, the protection of the Convention applies to nationals and residents of signatory countries, and to works first published or simultaneously published (under Article 3(4), "simultaneously" is defined as "within 30 days"[2]) in a signatory country.[2] Under Article 4, it also applies to cinematic works by persons who have their headquarters or habitual residence in a signatory country, and to architectural works situated in a signatory country.[3]

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 signatory country and nowhere else, this is the country of origin. However, under Article 5(4), when a work is published simultaneously in several signatory countries (under Article 3(4), "simultaneously" is defined as "within 30 days" [2]), the country with the shortest term of protection is defined as the country of origin.[4]

For works simultaneously published in a signatory country and one or more non-signatory countries, the signatory country is the country of origin. For unpublished works or works first published in a non-signatory country (without publication within 30 days in a signatory country), the author's nationality usually provides the country of origin, if a national of a signatory country. (There are exceptions for cinematic and architectural works.)[4]

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, 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.[5] The matter of determining the country of origin for digital publication remains a topic of controversy among law academics as well.[6]

Copyright term

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,[7] 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.[7]

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",[7] 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.

Fair use

The Berne Convention authorizes countries to allow "fair" uses of copyrighted works in other publications or broadcasts.[8][9] Implementations of this part of the treaty fall into the broad categories of fair use and fair dealing.

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."[10] This language may mean that Internet service providers are not liable for the infringing communications of their users.[10] Critics claim that the convention does not mention any other rights of consumers of works except for fair use.[11]

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 of the Association Littéraire et Artistique Internationale. 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. 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 signed the Convention.

Before the Berne Convention, national copyright laws usually only applied for works created within each country. So for example a work published in United Kingdom 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.[12]

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.

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. In 1960, BIRPI moved to Geneva, to be closer to the United Nations and other international organizations in that city. In 1967 it became the World Intellectual Property Organization (WIPO), and in 1974 became an organization within the United Nations.

The Berne Convention was revised in Paris in 1896 and 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.

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.

Adoption and implementation

The first version of the Berne Convention treaty was signed on 9 September 1886, by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom.[13]

Although the United Kingdom signed the convention in 1886, 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 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 Berna revision on Paris 1971,[14] many other countries joined the treaty, as experssed by Brazil federal law of 1975.[15]

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,[16] and making the Universal Copyright Convention nearly obsolete.[17] 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 March 2016, there are 170 states that are parties to the Berne Convention. This includes 169 UN member states plus the Holy See.

See also

References

  1. ↑ Circular 38A: International Copyright Relations of the United States (PDF). U.S. Copyright Office. 2014. p. 2. Retrieved 5 March 2015.
  2. 1 2 3 Berne Convention Article 3.
  3. ↑ Berne Convention Article 4.
  4. 1 2 Berne Convention Article 5.
  5. ↑ 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.
  6. ↑ See for example the columns of Jane Ginsburg: And the article
  7. 1 2 3 Berne Convention Article 7.
  8. ↑ 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. 384 (President and Trustees of Notre Dame University in South Bend, Indiana). Retrieved 9 June 2010.
  9. ↑ Berne Convention Article 10, article 10bis.
  10. 1 2 Travis, p. 373.
  11. ↑ There Can Be No 'Balance' In The Entirely Unbalanced System Of Copyright – Techdirt, Mike Masnick, 1 March 2012
  12. ↑ "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 2010-08-29.
  13. ↑ 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, October 14 to November 14, 1908. Washington, D.C.: Library of Congress. p. 9.
  14. ↑ WIPO's "Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)", http://zvon.org/law/r/bern.html
  15. ↑ Brazilian's Federal Decree No. 75699 of May 6, 1975. urn:lex:br:federal:decreto:1975;75699
  16. ↑ Molotsky, Irvin (21 October 1988). "Senate Approves Joining Copyright Convention". The New York Times. Retrieved 22 September 2011.
  17. ↑ 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

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