What is Berne Convention

Introduction

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of legal principles for the protection of original work. They drafted and adopted a multi-party contract containing agreements for a uniform. Along with that crossing-border system became known under the same name. Its rules have been updated many times since then. The treaty provides authors, musicians, poets, painters, and other creators. These are provided with means to control how their works are used, by whom, and on what terms. In some jurisdictions, these types of rights are referred to as copyright.

History

The Berne Convention was developed at the instigation of Victor Hugo of the Association Listeriae et Artistique Internationale. Thus it was influenced by the French “right of the author”. That was contrasting with the Anglo-Saxon concept of “copyright” which only dealt with economic concerns.

Before the Berne Convention, copyright legislation remained uncoordinated at an international level. So for example a work published in the United Kingdom by a British national would be covered by copyright there. But that 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 Netherlands in 1899 in opposition to the convention over concerns that its international restrictions would stifle the Dutch print industry.

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. Additionally, In 1967 it became the World Intellectual Property Organization (WIPO). Moreover, in 1974 it became an organization within the United Nations.

The Berne Convention was completed in Paris in 1886. Then revised in Berlin in 1908, and completed in Berne in 1914. Again revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979.

Principles

The three basic principles are the following:

• Works originating in one of the Contracting Countries must be given the same protection in each Contracting country. As the latter grants to the works of its own nationals (principle of national treatment).

• Protection is not conditional upon compliance with any formality, rather it is automatic

• Protection is independent of the existence of protection in the country of origin of the work. If, however, a Contracting Country 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.

Rights

• 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 ,
• 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 audio-visual work. Along with the right to reproduce, distribute, perform in public, or communicate to the public that audio-visual work.

Duration of protection

In general, any protection for literary and artistic works under Berne’s convention expires after 50 years of the author’s death. Unknown or pseudonymous creations can be protected for 50 years after going public. In instances where the author’s identity is apparent or when the author comes forward and owns the creation during the protection period, the protection will expire after 50 years of the author’s death.

Creations of applied art and photographic works receive protection for a minimum of 25 years from their creation.

Cinematographic (audio-visual) creations can enjoy minimum protection for 50 years after going public (release). If such creations go unpublished, the protection stands for 50 years from the formation of the work.

 Criteria for Eligibility

Authors of works are protected, in respect of both their unpublished or published works. If according to Article 3, they are nationals or residents of a Member country. Alternatively, if, not nationals or residents of a Member country, they first publish their works in a Member country or simultaneously in a non-Member and a member country.

Furthermore, are protected authors of cinematographic works the maker of which has his headquarters or habitual residence in a Member country. Likewise, protection applies to authors of works of architecture, erected in a Member country. Additionally authors of artistic works incorporated in a building or other structure located in a Member country.

Owners of Rights

Article 2(6) lays down that protection under the Convention is to operate for the benefit of the author and his successors in title. Successors in the title include heirs, or persons to whom rights have been transferred by contracts, such as assignees, (publisher, sound recording producer, author’s employer, the person who has commissioned the making of a work, etc) or donees. for some categories of works, however, such as cinematographic works (Article 14bis), ownership of copyright is a matter for legislation in the country where protection is claimed.

The concept of authorship may be open to debate in some instances. Article 15 has instituted a number of presumptions for the purpose of infringement proceedings. Under Article 15(1), the person whose name appears on the work in the usual manner shall be regarded as its author. This will apply also in cases where the name is a pseudonym. If the pseudonym adopted by the author leaves no doubt as to his identity. Other presumptions may be found also in Article 15 (2), (3), (4).

Limitations to Rights

As a sort of counterbalance to the minimum standards of protection. There are also other provisions in the Berne Convention limiting the strict application of the rules regarding exclusive rights. It provides for the possibility of using protected works in particular cases. Without having to obtain the authorization of the owner of the copyright and without having to pay any remuneration for such use. Such exceptions, which are commonly referred to as free use of protected works, are included 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).

There are two cases where the Berne Convention provides the possibility of compulsory licenses—in Articles 11bis (2), for the right of broadcasting and communication to the public by wire, by rebroadcasting, or by loudspeaker, or any other analogous instrument of the broadcast of the work, and 13(1) for the right of recording musical works.

In so far as the exclusive right of translation is concerned, the Berne Convention offers a choice, in that a country may, when acceding to the Convention, make a reservation under the so-called “ten-year rule” (Article 30(2)(b). This provides for the possibility of reducing the term of protection. Protection in respect of the exclusive right of translation; this right. According to the said rule, ceases to exist if the author has not availed himself of it within 10 years from the date of the first publication of the original work, by publishing or causing it to be published, in one of the member countries, a translation in the language for which protection is claimed.

Application in Time

The Protection under the Berne Convention is retrospective. Since it applies to all works which, at the moment of its coming into force for a specific country, have not yet fallen into the public domain in the country of their origin through the expiry of the term of protection.

Advantages of Berne Convention

The treaty ensures that the rights of these creative individuals remain intact with them. Berne Convention also assures artists and authors of legitimate flexibility to exercise control over their masterwork. Control in terms of adapting, disseminating, and reproducing it. Apart from laying the foundation for a unified and unbiased approach to recognizing the copyright of works from other countries, the international enactment expects its adherent countries to also deliver a set of minimum standards and to seek special provisions when it comes to enforcing copyright laws.

Limitations of Berne Convention

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).

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. And is also subject to the payment of remuneration to be fixed by the law.

Becoming Party to the Convention

In order to become a party to the Berne Convention, an instrument of accession has to be deposited with the Director General of WIPO (Article 29(1). Accession to the Berne Convention and membership of the Berne Union becomes effective three months after the date on which the Director General of WIPO has notified the deposit of the above-mentioned instrument of accession (Article 29(2)(a). In accordance with Article 1 of the Appendix, a developing country has to specifically declare, at the time of its ratification of or accession to the Paris Act, that it will avail itself of the provisions in the Appendix concerning the compulsory licenses for translation and/or reproduction.

In becoming a party to the Berne Convention, the State concerned becomes a member of the Berne Union. It would therefore be entitled:

• to full membership (right to vote) in the Berne Union Assembly (Article 22(3)(a);
• to the right to vote in elections of or to be elected to the Executive Committee of The Berne Union (Article 23(2)(a));
• to automatic membership in the WIPO Co-ordination Committee during the period of its membership in the Executive Committee of the Berne Union (Convention establishing WIPO, Article 8(1)(a).

 To become a member of the Berne Union is in the interest of every country that wants to establish healthy conditions for the development of its culture and economy. Henceforth, it is particularly in the interest of every developing country.

List of countries and regions that are not signatories to the Berne Convention :-

• Angola (but joined TRIPS Agreement)
• Eritrea
• Ethiopia (but joined TRIPS Agreement as observer)
• Iran (but joined TRIPS Agreement as observer)
• Iraq (but joined TRIPS Agreement as observer)
• Kosovo
• Maldives (but joined TRIPS Agreement)
• Marshall Islands
• Myanmar (but joined TRIPS Agreement)
• Palau
• Palestine
• Papua New Guinea (but joined TRIPS Agreement)
• Seychelles (but joined TRIPS Agreement)
• Sierra Leone (but joined TRIPS Agreement)
• Somalia (but joined TRIPS Agreement as observer)
• South Sudan (but joined TRIPS Agreement as observer)
• Taiwan (but joined TRIPS Agreement as  Chinese Taipei)
• Timor-Leste (but joined Universal Copyright Convention (Paris) as observer)

Case studies

Amaranth Sehgal v. Union of India

Analysis:

While holding that moral rights form the soul of an author’s work, the Court clarified that these could not be taken away from the author regardless of the work’s sale. Destroying and mutilating work is held to infringe upon the author’s moral rights.

The Government argued that once the sale was complete and due consideration had been paid, it had the power to utilize the work as it deemed fit, including its decision to remove the work from public display. However, the Court did not accept this argument. Moreover, Court emphasized that the mutilation and part destruction of the mural was prejudicial to the reputation of the author itself, regardless of who is the owner. Therefore, the author was awarded a compensation of Rs.5,00,000/-  and ordered that the remains of the mural be delivered to Amarnath for the purpose of restoration and further, sale.

Conclusion:

How moral rights were to be interpreted formed the basis for this case. The Court further granted special reliefs that had not been witnessed prior to this case. These include returning the copyrighted work back to the author. This reiterated and set the tone for future interpretations of moral rights and the residuary rights of an author.

MRF Limited. Vs Metro Tyres Limited

Analysis:

Although, the Hon’ble High Court of Delhi after viewing the plaintiff’s and defendant’s advertisements and applying the test given in the R.G. Anand case, prima facie opined that the two advertisements were neither substantially nor materially similar but, this judgment has answered some important questions in the copyright regime of India, and the Hon’ble Court in its judgment made it clear that:

– The definition of copying is not limited to an actual copy made by the process of duplication but it is wider than that, and includes an imitation or reproduction in it.

– The copyright infringement test laid down in the case of R.G Anand v. M/s Deluxe Films and Ors. It can be applied not only to literary works but also to cinematographic films.

– The word ‘original’ in section 13(1) is not limited to literary, dramatic, musical, and artistic works but also covers cinematograph films in it.

Conclusion

Although the cases did share an intricate similarity as to the object of the law. But their applicability to the scenarios mentioned was different. In so far as the proof required to invoke infringement provisions was not met. The Courts though did a meticulous job at defining the spheres of what situations can petition the provisions of the copyright regime in case of ‘copying’ of a work and at defining the scope of ‘copying’. Further the Court settled a long-standing discrepancy as to the applications of the word ‘original’ to copyrighted or copyrightable work which is going to lay a precedent to settle future matters which includes similar questions of law.

References

1. World Intellectual Property Organisation
2. https://www.legalserviceindia.com/copyright/bern.htm
3. https://study.com/academy/lesson/berne-convention-history-facts.html
4. Indiankanoon.org