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Berne Convention for the Protection of Literary and Artistic Works
The Convention for the protection of literary and artistic works was originally concluded in Berne on 28 September 1886, by ten States, in order to guarantee copyright protection in foreign States for their own citizens. It established a Union for the protection of industrial property. The Berne Convention was subsequently completed in Paris on 4 May 1896, revised in Berlin on 13 November 1908, completed in Berne on 20 March 1914, revised in Rome on 2 June 1928, in Brussels on 26 June 1948, in Stockholm on 14 July 1967, in Paris on 24 July 1971 and amended on 28 September 1979. Today, membership of the Union is over 100.
The Convention defines the functions, powers and rules of operation of the Union which comprises an Assembly, an Executive Committee of the Assembly, an International Bureau and a Director General.
To determine its scope, the Convention defines what is meant by literary and artistic works, and gives a large enumeration of protected original creations. The form in which such works are expressed may be words, symbols, music, pictures, three-dimensional objects, or combinations of these. The Convention, for example, expressly covers translations, arrangements of music and other alterations of an original work, encyclopaedias and anthologies. Protection may be extended to official texts and to their translations if the national law provides for it, as well as to speeches and speeches delivered in the course of legal proceedings, conferences, etc, if the national law does not exclude it.
The Convention guarantees protection of rights of authors and their entitled beneficiaries in all the countries of the Union. To benefit from the protection, an author must be national of one of the countries of the Union, or have his works first published in a State of the Union, or usually reside in a State of the Union, without prejudice to special provisions in respect of cinematographic or architectural works.
In the country of origin within the meaning of the Convention, protection is governed by domestic law in accordance with a principle of equality between nationals and non-nationals. Outside the country of origin, the author benefits from rights which are especially accorded to him by the Convention and, furthermore, from the national treatment, without any formality. Restrictive rules may be implemented on the basis of reciprocity, towards countries outside the Union which fail to protect in an adequate manner the works of authors who are nationals of one of the countries of the Union.
The Convention guarantees moral rights and economic rights. Moral rights cover the right to claim authorship of a work, to uphold its integrity and oppose its deformation. Moral rights last at least up to the death of the author and may continu beyond, subject to contrary provisions, until the expiry of the economic rights. Moral rights are, generally, inalienable although their exercise may be waived by the author. The remedies, enabling these rights to be enforced, are determined by the domestic law of the country where protection is claimed.
As regards economic rights, overall, the Convention grants authors the exclusive right of authorizing the recitation, public performance, reproduction and public dissemination of their work, as well as its translation, adaptations, arrangements and other alterations. The Convention also establishes, subject to provisions of national legislation, the « droit de suite » of the author. The Convention nevertheless lays down some limits to the rights of authors in consideration either of the nature of the work, or of the aim for which it is used outside the author's consent, for example for the purpose of teaching or information.
The duration of the protection accorded by the Convention to an author must cover at least the life of the author and a period of fifty years after his death. For some works, the Convention however provides for a shorter duration and opens the possibility for the national legislation of the parties to the Rome Act of 2 June 1928, to fix a shorter duration.
Protection of the author implies that any infringing copy of his may be seized in any country of the Union where it enjoys legal protection, in accordance with the rules defined by each national legislation. Protection applies to all works which have not yet fallen into the public domain in the country of origin, at the moment of its coming into force.
The provisions of the Berne Convention do not preclude application of national provisions which are more favourable. The Convention also allows the countries of the Union to extend their protection by entering into special agreements among them.
The Convention is concluded without limitation as to time and may be denounced at any time by a State, in so far as it is concerned, in accordance with the formalities required by the Convention. Some reservations are admitted in Aarticles 1 to 21 and the Convention includes an appendix concerning the developing countries which allows implementation of specific rules. Each country of the Union which has signed the Paris Act may ratify it, and, if it has not signed it, may accede to it. Any country outside the Union may likewise accede to it. Instruments of ratification or accession, as well as the declarations are deposited with the Director General of WIPO.
