Berne Convention for the Protection of Literary and Artistic Works
Encyclopedia
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.
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 in 1988, it continued to make statutory damages
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.
The Berne Convention authorizes countries to allow "fair" uses of copyrighted works in other publications or broadcasts. 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.” This language may mean that Internet service providers are not liable for the infringing communications of their users.
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 work
s, 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. 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 could be copyrighted there, but could be copied and sold by anyone in the UK. 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 country's print industry.
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
: patent
s, trademark
s and industrial design
s.
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 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.
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 to the Universal Copyright Convention
in 1952 to accommodate the wishes of the United States. But on March 1, 1989, the U.S. Berne Convention Implementation Act of 1988
was enacted, and the United States Senate ratified the treaty, making the U.S. a party to the Berne Convention, and making the Universal Copyright Convention nearly obsolete.
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.
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.
, there are 164 countries that are parties to the Berne Convention.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, which was first accepted in Berne
Berne
The city of Bern or Berne is the Bundesstadt of Switzerland, and, with a population of , the fourth most populous city in Switzerland. The Bern agglomeration, which includes 43 municipalities, has a population of 349,000. The metropolitan area had a population of 660,000 in 2000...
, Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
in 1886.
Content
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 as it recognizes the copyright 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 in 1988, it continued to make statutory damages
Statutory damages for copyright infringement
Statutory damages for copyright infringement are available under some countries' copyright laws.The charges allow copyright holders, who succeed with claims of infringement, to receive an amount of compensation per work...
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
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
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
Rule of the shorter term
The rule of the shorter term, also called the comparison of terms, is a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment, to at most the copyright term granted in the...
". Not all countries have accepted this rule.
The Berne Convention authorizes countries to allow "fair" uses of copyrighted works in other publications or broadcasts. 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.” This language may mean that Internet service providers are not liable for the infringing communications of their users.
History
The Berne Convention was developed at the instigation of Victor HugoVictor Hugo
Victor-Marie Hugo was a Frenchpoet, playwright, novelist, essayist, visual artist, statesman, human rights activist and exponent of the Romantic movement in France....
of the Association Littéraire et Artistique Internationale
Association Littéraire et Artistique Internationale
Association Littéraire et Artistique Internationale was founded 1878 in Paris. Victor Hugo was the honorary president and founder of the association. The group gave itself the objective of creating an international convention for the protection of writers' and artists' rights, which was...
. Thus it was influenced by the French "right of the author
French copyright law
The droit d'auteur developed in the 18th century at the same time as copyright developed in the United Kingdom. Based on the "right of the author" instead of on "copyright", its philosophy and terminology are different from those used in copyright law in common law jurisdictions...
" (droit d'auteur), which contrasts with the Anglo-Saxon
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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 work
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...
s, 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. 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
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
. Likewise, a work published in France by a French national could be copyrighted there, but could be copied and sold by anyone in the UK. Dutch publisher Albertus Willem Sijthoff
Albertus Willem Sijthoff
Albertus Willem Sijthoff was a prominent Dutch publisher from Leiden, South Holland, Netherlands.-Early life:Sijthoff was born in 1829 to an established family in Leiden...
, who rose to prominence in the trade of translated books, wrote to Queen Wilhelmina of the Netherlands
Wilhelmina of the Netherlands
Wilhelmina was Queen regnant of the Kingdom of the Netherlands from 1890 to 1948. She ruled the Netherlands for fifty-eight years, longer than any other Dutch monarch. Her reign saw World War I and World War II, the economic crisis of 1933, and the decline of the Netherlands as a major colonial...
in 1899 in opposition to the convention over concerns that its international restrictions would stifle the country's print industry.
The Berne Convention followed in the footsteps of the Paris Convention for the Protection of Industrial Property
Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, was one of the first intellectual property treaties. It established a Union 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
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
: patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s, trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
s and industrial design
Industrial design
Industrial design is the use of a combination of applied art and applied science to improve the aesthetics, ergonomics, and usability of a product, but it may also be used to improve the product's marketability and production...
s.
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
United International Bureaux for the Protection of Intellectual Property
The United International Bureaux for the Protection of Intellectual Property was an international organization. It was set up in 1893 to administer the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property...
(best known by its French acronym BIRPI), situated in Berne. In 1960, BIRPI moved to Geneva
Geneva
Geneva In the national languages of Switzerland the city is known as Genf , Ginevra and Genevra is the second-most-populous city in Switzerland and is the most populous city of Romandie, the French-speaking part of Switzerland...
, to be closer to the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
and other international organizations in that city. In 1967, it became the World Intellectual Property Organization
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
(WIPO), and in 1974 became an organization within the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
.
The Berne Convention was revised in Paris
Paris
Paris is the capital and largest city in France, situated on the river Seine, in northern France, at the heart of the Île-de-France region...
in 1896 and in Berlin in 1908, completed in Berne in 1914, revised in Rome
Rome
Rome is the capital of Italy and the country's largest and most populated city and comune, with over 2.7 million residents in . The city is located in the central-western portion of the Italian Peninsula, on the Tiber River within the Lazio region of Italy.Rome's history spans two and a half...
in 1928, in Brussels
Brussels
Brussels , officially the Brussels Region or Brussels-Capital Region , is the capital of Belgium and the de facto capital of the European Union...
in 1948, in Stockholm
Stockholm
Stockholm is the capital and the largest city of Sweden and constitutes the most populated urban area in Scandinavia. Stockholm is the most populous city in Sweden, with a population of 851,155 in the municipality , 1.37 million in the urban area , and around 2.1 million in the metropolitan area...
in 1967 and in Paris in 1971, and was amended in 1979. 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.
The United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
initially refused to become a party to the Convention, since that would have required major changes in its copyright law
United States copyright law
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
, particularly with regard to moral rights, removal of the general requirement for registration of copyright works and elimination of mandatory copyright notice. This led to the Universal Copyright Convention
Universal Copyright Convention
The Universal Copyright Convention , adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention....
in 1952 to accommodate the wishes of the United States. But on March 1, 1989, the U.S. Berne Convention Implementation Act of 1988
Berne Convention Implementation Act of 1988
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.- Context :...
was enacted, and the United States Senate ratified the treaty, making the U.S. a party to the Berne Convention, and making the Universal Copyright Convention nearly obsolete.
The World Intellectual Property Organization Copyright Treaty
World Intellectual Property Organization Copyright Treaty
The World Intellectual Property Organization Copyright Treaty, abbreviated as the WIPO Copyright Treaty, is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization in 1996...
was adopted in 1996 to address the issues raised by information technology
Information technology
Information technology is the acquisition, processing, storage and dissemination of vocal, pictorial, textual and numerical information by a microelectronics-based combination of computing and telecommunications...
and the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
, which were not addressed by the Berne Convention.
Since almost all nations are members of the World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
, the Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
requires non-members to accept almost all of the conditions of the Berne Convention.
, there are 164 countries that are parties to the Berne Convention.
See also
- Berne Convention Implementation Act of 1988Berne Convention Implementation Act of 1988The 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.- Context :...
- Berne three-step testBerne three-step testThe Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.- Berne Convention :The three-step...
- Buenos Aires ConventionBuenos Aires ConventionThe Buenos Aires Convention is a copyright treaty signed at Buenos Aires on 1910-04-11 which provides for the mutual recognition of copyrights where the work carries a notice containing a statement of reservation of rights...
- List of parties to international copyright agreements
- Official text copyrightOfficial text copyrightOfficial texts, as defined in Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, are texts of a legislative, administrative and legal nature and the official translations of such texts....
- Public domainPublic domainWorks are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
- Rome Convention
- Universal Copyright ConventionUniversal Copyright ConventionThe Universal Copyright Convention , adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention....
- World Trade Organization Dispute 160World Trade Organization Dispute 160On January 26, 1999, the European Communities and its Member States requested consultation with the United States concerning a dispute over discrepancies between the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and Section 110 of the United States Copyright Act amended...
External links
- The current Berne Convention text
- The 1971 Berne Convention text - fully indexed and crosslinked with other documents
- WIPO list of intellectual property protection treaties
- U.S. Copyright office list of countries having copyright relations with the United States (including list of Berne Union countries)
- USA House of Representatives Report of the Berne Convention Implementation Act of 1988, H.R. Rep. No. 100-609 (1988) gives a brief overview of the successive modifications to the Berne Convention.