Introduction
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the “Berne Convention”[1] is an international agreement governing copyrights. It was first adopted in Berne, Switzerland in 1886. The Berne Convention lists several aspects of modern copyright law. It introduced the concept that a copyright exists the moment a work is “fixed”, or manifested into a tangible format, rather than requiring registration.
History of the Berne Convention
The Berne Convention was developed pursuant to Victor Hugo’s Associated literature Artist International association. Under the convention, copyrights for creative works are automatically enforced upon its creation without it being asserted or declared. An author need not register or apply for a copyright in countries adhering to the Convention. As soon as their work is fixed- either written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work and any derivative works, unless and until the author explicitly disclaims it or the copyright expires.
Foreign authors are given the same rights and privileges regarding copyrighted material as domestic authors in any country that is a signatory to this Convention. Before the Berne Convention, national copyright laws usually only applied to works created within each country.
The Berne Convention followed the footsteps of the Paris Convention for the Protection of Industrial Property of 1883[2], which in the same way had created a framework for international integration of different types of intellectual property such as patents, trademarks, and industrial designs. Like the Paris Convention, the Berne Convention set up a bureau to handle administrative tasks. In 1893, the two Bureaus merged and became the United International Bureau for the Protection of Intellectual Property (BIRPI) which is situated in Bern. In 1960, BIPRI moved to Geneva. They became part of the World Intellectual Property Organization in 1967, and 7 years later, an organization within the United Nations.
The final version of the Berne Convention was reached in the year 1914 and was amended in 1979. The World Intellectual Property Organization Copyright Treaty was adopted in 1996 to address the issues raised in information technology and the internet that were not addressed by the Berne Convention.
Adoption and Implementation of the convention
The first version of the Berne Convention treaty was signed on September 9, 1886, by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom. Though Britain signed the Convention in 1886 but implemented it a century later with the passage of 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 the elimination of mandatory copyright notice. This led to the US ratifying the Buenos Aires Convention (BAC) in 1910 and later the Universal Copyright Convention in 1952 to accommodate the wishes of other countries. Later, however, when the US Berne Convention Implementation Act of 1988 was enacted on March 1, 1989, it became a party to the Berne Convention which made the Universal Copyright Convention nearly obsolete. With the accession of Nicaragua in 2000, every nation that is a member of the Buenos Aires Convention was also a member of Berne, which led the BAC to become nearly obsolete. Since almost all nations are members of the World Trade Organization, the agreement on TRIPS requires non-members to accept almost all of the conditions of the Berne Convention.
Content of the treaty:
The Berne Convention requires its signatories to treat the copyright of works of authors from other signatory countries as well as those of its own nationals. In addition to establishing a system of equal treatment of internationalized copyright amongst the signatories, the agreement also required member states to provide strong minimum standards for copyright law protection. Copyright under the Berne Convention must be automatic. It is prohibited to require formal registration.
As per Article 3 of the convention, the protection of the Convention applies to nationals and residents of signatory countries, and to work first published or simultaneously published within 30 days in a signatory country. Article 4 applies to cinematic works created by persons who have their headquarters or habitual residence in a signatory country and architectural work created by persons situated in a signatory country.
The Convention relies on the concept of “country of origin”. Country of origin, as per the Convention, means that when a work is published in a signatory country and nowhere else, that country is the “country of origin”. As per Article 5(4) of the Convention[3], for work simultaneously published in a signatory country in 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, the author’s nationality usually provides the country of origin if he is a national of a signatory country.
Drawbacks of the Convention-
Determining Country of Origin for digital publication
The matter of determining the country of origin for digital publication remains a topic of controversy among law academicians. ‘Copyright’ as per Berne Convention means that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death. However, the parties are free to provide longer terms of protection as done by the European Union in 1993 for a directive on harmonizing the term of copyright protection for photography. The Convention set the term of 25 years of protection from the year the photo was made, and for cinematography, the term is 50 years after the first showing or 50 years after the creation in the event that it hasn't been shown within the base term of 50 years of its creation.
Countries under the older revisions of the treaty may choose to provide their own protection terms, and certain types of works may be provided in shorter terms. If the author is unknown, because the author was deliberately anonymous or worked under a pseudonym, the convention provides for a term of 50 years after publication. However, if the identity of the author becomes known, the copyright term for known authors applies. Though the Convention mentions that the copyright law, the nation where copyright is claimed shall be applied, Article 7 and 8[4] 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” 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 a shorter term, though all countries haven't accepted this rule.
Right of the public not equivalent to that of an author -
The Berne Convention authorizes countries to allow “fair use” of copyrighted works in other publications or broadcasts. 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[5] 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.” This simply means that internet service providers are not liable for the infringing communications of their users. Critics claim that the Convention does not mention any other rights of consumers of works except fair use.
Conclusion
The Berne Convention was proposed to be amended routinely to keep pace with social and technological advancements. It was revised multiple times between the years 1886 to 1971, however, there hasn’t been any substantive alteration in the Convention. Certain rules of the Convention are outdated as they were formulated before the advent of digital technology. Various signatory nations with varying levels of development find it extremely hard to update the Convention to cover issues arising from digital advancement. Member countries of the Berne Convention cannot consider denouncing the treaty as a reasonable option in light of the fact that membership of Berne is a pre-condition for being a member of the World Trade Organization. Hence, the Berne Convention is not in terms with changing social and technological conditions as it is not well equipped to provide effective protection of IP rights.
[1] Berne Convention 1886 https://www.wipo.int/treaties/en/ip/berne/
[2] Paris Convention for the Protection of Industrial Property of 1883 https://www.wipo.int/edocs/lexdocs/treaties/en/paris/trt_paris_001en.pdf
[3] Article 5(4) Berne Convention https://www.wipo.int/edocs/lexdocs/treaties/en/berne/trt_berne_001en.pdf
[4] Berne Convention Article 7 and 8 https://www.wipo.int/edocs/lexdocs/treaties/en/berne/trt_berne_001en.pdf
[5] WIPO Copyright Treaty of 1996 https://www.wipo.int/treaties/en/ip/wct/
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