Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention, adopted in 1886, deals with the protection of works and the rights of their authors. It provides creators such as authors, musicians, poets, painters etc. with the means to control how their works are used, by whom, and on what terms. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them.
The Berne Convention Implementation Act of 1988 is a copyright act that came into force in the United States on March 1, 1989, making it a party to the Berne Convention for the Protection of Literary and Artistic Works.
Contents
Context
The United States initially refused—for 102 years, from 1886 to 1988—to join the Berne Convention, as it would have required major changes in its copyright law, particularly:
- (A) Moral rights,
- (B) Copyright formalities, including registration, deposit, and mandatory copyright notice
At the same time, U.S. copyright experts seemed to acknowledge that the United States' approach to international copyright relations was flawed. For example, Barbara Ringer, a leading U.S. copyright official, remarked that until around 1955, the United States' "role in international copyright was marked by short-sightedness, political isolationism, and narrow economic self-interest".[1]
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.
H. Sandison writes: "The roots of American isolationism [are from the 1790 Copyright Act which protected books] only if their authors were citizens or residents of the United States".[2] Ringer observed that this meant U.S. publishers could pirate the works of English authors like Charles Dickens and publish them cheaper in the new nation than U.S. authors could be published.[3] This hurt the market for American books for 100 years and was only partly remedied in 1891, when the United States passed a limited international copyright law.[4] Although the United States was not alone in denying copyright protection to nonresident foreigners, by waiting until 1988 to join the Berne Convention, the United States was one of the last industrial countries to join.
By ratifying the Berne Convention, the United States Congress signaled that it was taking a "minimalist approach to compliance" (emphasis original).[5] Indeed, regarding both moral rights and formalities, the Implementation Act was limited; in short, the "major concession was that the United States finally, reluctantly, did away with copyright formalities".[6] Furthermore, some copyright formalities, like requiring that a copy of the work be "deposited" at the Library of Congress, were preserved.[5]
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]
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.
Contents
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. HÃ¥kan 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]
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,[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.
Copyright exceptions and limitations
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 (c) 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-Disabledwas 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-Saxonconcept 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 the 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 Netherlandsin 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, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom.[26] They ratified it on 5 September 1887.[27]
Although the United Kingdom 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.[who?]
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 April 2019, there are 177 states that are parties to the Berne Convention. This includes 174 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.[37]
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.[38]
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]
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.
Contents
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. HÃ¥kan 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]
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,[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.
Copyright exceptions and limitations
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 (c) 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-Disabledwas 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-Saxonconcept 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 the 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 Netherlandsin 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, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom.[26] They ratified it on 5 September 1887.[27]
Although the United Kingdom 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.[who?]
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 April 2019, there are 177 states that are parties to the Berne Convention. This includes 174 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.[37]
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.[38]
Countries that are Not Members of the Berne Convention on Copyrights
Most countries have signed on to the Berne Convention, administered by the World Intellectual Property Organization (WIPO) which specifies that copyrighted material must be protected for fifty years (or more) after the death of the author.
WIPO provides a handy list of the signatories, all 168 of them, and someone at Wikipedia turned it into a map that hasn’t been updated since 2012 (and has a few errors).
But despite looking, I could not find a comprehensive list of non-members of the Berne Convention. So I compared the full list of countries, all 1971, to the Berne list, and came up with a list of countries that are not members.
- Afghanistan
- Angola
- Burundi
- Cambodia
- Eritrea
- Ethiopia
- Iran
- Iraq
- Kiribati
- Kosovo
- Maldives
- Marshall Islands
- Myanmar (Burma)
- Nauru
- North Korea
- Palau
- Papua New Guinea
- San Marino
- Sao Tome and Principe
- Seychelles
- Sierra Leone
- Solomon Islands
- Somalia
- South Sudan
- Taiwan
- Timor-Leste
- Turkmenistan
- Tuvalu
- Uganda
There are two special cases in this list, which are italicized for easy identification Taiwan isn’t a member because China doesn’t permit Taiwan to join treaties (as it considers Taiwan to be a territory.) But Taiwan has signed other copyright agreements, recognizes copyrights, and its copyrights are recognized. Kosovo isn’t recognized as a country by about half the world. It appears to respect copyright though it has not signed on to the Berne Convention.
If you look at the map you immediately notice that the majority of the countries are in Africa and the Middle East, although Oceania is well represented the countries are tiny island countries (some with as few as a few thousand citizens). The other interesting thing is that they appear to come in clusters. I’m not sure if this is because the value of respecting copyright is less if your neighbors do not respect it, but I thought it was very interesting.
Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886)
The Berne Convention deals with the protection of works and the rights of their authors. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them.
(1) The three basic principles are the following:
(a) Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of "national treatment") [1].
(b) Protection must not be conditional upon compliance with any formality (principle of "automatic" protection) [2].
(c) Protection is independent of the existence of protection in the country of origin of the work (principle of "independence" of protection). If, however, a Contracting State provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases [3].
(2) The minimum standards of protection relate to the works and rights to be protected, and to the duration of protection:
(a) 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).
(b) 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 [4].
The Convention also provides for "moral rights", that is, the right to claim authorship of the work and the right to object to any mutilation, deformation or other modification of, or other derogatory action in relation to, the work that would be prejudicial to the author's honor or reputation.
(c) As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author's death. There are, however, exceptions to this general rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years after the work has been lawfully made available to the public, except if the pseudonym leaves no doubt as to the author's identity or if the author discloses his or her identity during that period; in the latter case, the general rule applies. In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public ("release") or – failing such an event – from the creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of the work [5].
(3) The Berne Convention allows certain limitations and exceptions on economic rights, that is, cases in which protected works may be used without the authorization of the owner of the copyright, and without payment of compensation. These limitations are commonly referred to as "free uses" of protected works, and are set forth in Articles 9(2) (reproduction in certain special cases), 10 (quotations and use of works by way of illustration for teaching purposes), 10bis (reproduction of newspaper or similar articles and use of works for the purpose of reporting current events) and 11bis(3) (ephemeral recordings for broadcasting purposes).
(4) The Appendix to the Paris Act of the Convention also permits developing countries to implement non-voluntary licenses for translation and reproduction of works in certain cases, in connection with educational activities. In these cases, the described use is allowed without the authorization of the right holder, subject to the payment of remuneration to be fixed by the law.
The Berne Union has an Assembly and an Executive Committee. Every country that is a member of the Union and has adhered to at least the administrative and final provisions of the Stockholm Act is a member of the Assembly. The members of the Executive Committee are elected from among the members of the Union, except for Switzerland, which is a member ex officio.
The establishment of the biennial program and budget of the WIPO Secretariat – as far as the Berne Union is concerned – is the task of its Assembly.
The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979.
The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO [6].
[1] Under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the principles of national treatment, automatic protection and independence of protection also bind those World Trade Organization (WTO) Members not party to the Berne Convention. In addition, the TRIPS Agreement imposes an obligation of "most-favored-nation treatment", under which advantages accorded by a WTO Member to the nationals of any other country must also be accorded to the nationals of all WTO Members. It is to be noted that the possibility of delayed application of the TRIPS Agreement does not apply to national treatment and most-favored obligations.
[2] Idem.
[3] Idem.
[4] Under the TRIPS Agreement, an exclusive right of rental must be recognized in respect of computer programs and, under certain conditions, audiovisual works.
[5] Under the TRIPS Agreement, any term of protection that is calculated on a basis other than the life of a natural person must be at least 50 years from the first authorized publication of the work, or – failing such an event – 50 years from the making of the work. However, this rule does not apply to photographic works, or to works of applied art.
[6] It is to be noted that WTO Members, even those not party to the Berne Convention, must comply with the substantive law provisions of the Berne Convention, except that WTO Members not party to the Convention are not bound by the moral rights provisions of the Convention.
The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) is an international copyright agreement that mandates equal treatment of copyrighted works by Berne signatories, known as the Berne Union. It requires signatory member countries to recognize copyrighted literary or artistic works in the same way that its national copyrights are recognized. For example, U.S. Copyright law applies to anything published in the United States, regardless of the work's origin.
The Berne Convention was adopted in 1886 in Berne, Switzerland.
According to the Berne Convention, all works - except cinematography and photography - are copyrighted for a a minimum term of 50 years after the death of an author, but longer terms may be provided related parties.
Although the Berne Convention applies the copyright law of the member signatory, the "rule of the shorter term" applies under article 7.8, which states that an author is not entitled to a copyright term longer than the term held at home, even if a country's laws provide a longer term. However, not all countries adhere to this rule
The Berne Convention also allows signatories to apply fair use of copyrighted works in other broadcasts or publications, as reflected in the WIPO Copyright Treaty of 1996. This language may imply that Internet service providers (ISP) are not liable for unauthorized communications between users.
List of Berne Convention signatories
Below is a list of signatories of the copyright treaty known as the "Berne Convention for the Protection of Literary and Artistic Works", commonly referred as The Berne Convention. The Berne Convention was held in 1886 in Berne, Switzerland. The treaty states that if copyright exists in one of these countries, then this copyright is valid in all member countries (contracting parties) who are signatories of the Berne Convention. At present there are 177 signatory countries out of 195 countries in the world today.
List of Signatories Berne Convention:
Berne Notification No. 121
Berne Convention for the Protection of Literary and Artistic Works
Accession by the United States of America
The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify him of the deposit by the Government of the United States of America, on November 16, 1988, of its instrument of accession to the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as revised at Paris on July 24, 1971, and amended on October 2, 1979.
The United States of America has not heretofore been a member of the International Union for the Protection of Literary and Artistic Works ("Berne Union"), founded by the Berne Convention.
In accordance with Article 29(2)(a) of the Berne Convention, as revised at Paris on July 24, 1971, and amended on October 2, 1979, the said Convention will enter into force, with respect to the United States of America, on the date indicated in the said instrument of accession, that is, on March 1, 1989.
The United States of America will belong to Class I for the purpose of establishing its contribution towards the budget of the Berne Union.
November 17, 1988
Alternative Titles: Bern Convention, International Convention for the Protection of Literary and Artistic Works
Berne Convention, Berne also spelled Bern, formally International Convention for the Protection of Literary and Artistic Works, international copyright agreement adopted by an international conference in Bern (Berne) in 1886 and subsequently modified several times (Berlin, 1908; Rome, 1928; Brussels, 1948; Stockholm, 1967; and Paris, 1971). Signatories of the Convention constitute the Berne Copyright Union.
The core of the Berne Convention is its provision that each of the contracting countries shall provide automatic protection for works first published in other countries of the Berne union and for unpublished works whose authors are citizens of or resident in such other countries.
Each country of the union must guarantee to authors who are nationals of other member countries the rights that its own laws grant to its nationals. If the work has been first published in a Berne country but the author is a national of a nonunion country, the union country may restrict the protection to the extent that such protection is limited in the country of which the author is a national. The works protected by the Rome revision of 1928 include every production in the literary, scientific, and artistic domain, regardless of the mode of expression, such as books, pamphlets, and other writings; lectures, addresses, sermons, and other works of the same nature; dramatic or dramatico-musical works, choreographic works and entertainments in dumb show, the acting form of which is fixed in writing or otherwise; musical compositions; drawings, paintings, works of architecture, sculpture, engraving, and lithography; illustrations, geographical charts, plans, sketches, and plastic works relative to geography, topography, architecture, or science. It also includes translations, adaptations, arrangements of music, and other reproductions in an altered form of a literary or artistic work, as well as collections of different works. The Brussels revision of 1948 added cinematographic works and photographic works. In addition, both the Rome and Brussels revisions protect works of art applied to industrial purposes so far as the domestic legislation of each country allows such protection.
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In the Rome revision the term of copyright for most types of works became the life of the author plus 50 years, but it was recognized that some countries might have a shorter term. Both the Rome and the Brussels revisions protected the right of making translations; but the Stockholm Protocol and the Paris revision somewhat liberalized the rights of translation, in a compromise between developing and developed countries.
(1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.
(3) Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.
(4) It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.
(5) Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.
(6) The works mentioned in this article shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title.
(7) Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.
(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.