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Berne Convention for the Protection of Literary and Artistic Works

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Citation Edit

The Berne Convention for the Protection of Literary and Artistic Works (usually known as the Berne Convention) (Sept. 9, 1886) (full-text).

Definition Edit

Under U.S. copyright law, the term Berne Convention is defined as the "Convention for the Protection of Literary and Artistic Works," signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto."[1]

History Edit

The Berne Convention is an international agreement about copyright, which was first adopted in Berne, Switzerland in 1886. It was developed at the instigation of Victor Hugo as the Association Littéraire et Artistique Internationale. Thus it was influenced by the French "right of the author" (droit d'auteur), which contrasts with the common law concept of "copyright" which only dealt with economic concerns. Under the Convention, copyrights for creative works automatically come into effect at 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 of the exclusive rights in the work and to any derivative works, unless and until the author explicitly disclaims them or until the copyright expires. Foreign authors were treated equivalently to 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. Consequently, a work published in United Kingdom (UK) by a British national would be covered by copyright there, but could be copied and sold by anyone in France; likewise, a work published in France by a French national would be covered by copyright there, but could be copied and sold by anyone in the UK.

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 kinds 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.

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

As of April 2007, there are 163 countries that are parties to the Berne Convention.

United Kingdom Edit

The UK signed in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act of 1988.

United States Edit

The United States initially refused to become party to the Convention, since it would have required major changes in United States copyright law, particularly with regard to moral rights, removal of general requirement for registration of copyright works and elimination of mandatory copyright notice. This led to the Universal Copyright Convention in 1952, to accommodate the wishes of the United States.

On March 1, 1989, the U.S. Berne Convention Implementation Act of 1988 came into force and the United States became a party to the Berne Convention. Congress determined that no changes to U.S. law were necessary to comply with the moral rights provisions of Article 6bis. Congress found that the existing panoply of remedies available under U.S. common law, various state statutes and federal laws provided sufficient moral rights protection. These findings were explicitly stated in the Berne Convention Implementation Act of 1988 (the "Act").[2]

In adopting the Act, Congress declared that the Berne Convention was "not self-executing under the Constitution and laws of the United States"; that "[t]he obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law"; and that "[t]he amendments made by this Act . . . , together with the law as it exists on the date of the enactment of the Act [October 13, 1988], satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose."[3] Indeed, the Act was enacted explicitly "to make the changes to the U.S. copyright law . . . necessary for the United States to adhere to the Berne Convention."[4]

Now that the United States is a member of the Berne Convention, the Universal Copyright Convention is for all practical purposes obsolete, except as to those foreign countries that are members of the Universal Copyright Convention, but not the Berne Convention.

Content Edit

The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way it recognizes the copyright of its own nationals, which means that, for instance, 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 internationalized 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 in 1988, they continued to make statutory damages for copyright infringement and attorney's fees only available for registered works).

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, 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.

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," 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.

References Edit

  1. 17 U.S.C. 101.
  2. See Act of October 31, 1988, Pub. L. No. 100-568, 1988 U.S.C.C.A.N. (102 Stat.) 2853.
  3. Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, §2, 102 Stat. 2853 (codified as amended at 17 U.S.C. §101 et seq.).
  4. S. Rep. No. 100-3452, at 1 (1988).

External resources Edit

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