BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS -1886

Abstract :

There is an increasing need for well equipped laws in field of copyright law expanding to organisations and multi national companies. The Berne Convention, adopted in 1886, deals with the protection of works and the rights of their authors. This Article deals with the basic introduction, principles, rights under the convention, it’s international and national perspective. It explains the meaning of literary and artistic works and explains its adoption in various countries. The main purpose of the article is to give relevant information regarding the Berne convention. It aims at all the important aspects regarding the Berne convention.

INTRODUCTION:

The Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the Convention) is the oldest international agreement in the field of copyright. Copyright is the protection given by the law to original literary and artistic works[1]. The Convention is the most important treaty that governs the area of copyright. It has also been described as being to copyright what the Paris Convention for the Protection of Industrial Property (hereinafter referred to as the Paris Convention) is to industrial property rights[2]. The Convention was signed in 1886 and has been revised several times. These revisions typically occur at twenty-year intervals, however, the last revision was done in Paris in 1971. The Paris 1971 Revision was notable because it added to the Convention the Appendix containing the Special Provisions Regarding Developing Countries[3].

The Berne Convention has been passed to protect the literary and artistic works of the one who has signed this treaty. It act as a binding force imposing various liabilities on its member. It was signed to form adherent merger of copyrights of all different countries into a single international copyright to avoid confusions relating to copyright laws.There are total 38 articles and with revisions from time to time appendix special provisions regarding developing countries was added containing VI Articles. Article one deals with the establishment of the union.

PRINCIPLES

The Berne Convention is based on three principles:

  1. The work that is originated in one union member country shall be treated and protected as a of own country. In other words it must be treated as a national interest.
  2. Protection offered should be free from any condition owing to any kind of formality. They should be protected with absolute power.
  3. The work protection does not depend upon the protection provided by the country where it was created. However, the contracting country may protect the work regardless that time of protection is lesser than they have protected. There is also no binding force to keep on protecting the work once the country originating has stopped protected. It is can be revoked.

RIGHTS UNDER THE CONVENTION

Article 2(1) defines the literary and artistic works.it includes books, pamphlets, choreographic works, musical compositions, paintings, photographic works, maps, sketches, three dimensional works related to geography, topography, architecture, science or works of same nature.

Article 5 of the convention deals with the “country of origin”, the rights available “inside the country of  origin and outside the country of origin”.

The country of origin[4] shall be considered to be:

(a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;

(b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country;

(c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:

(i) when these are cinematographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and

(ii) when these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country.

 Rights outside the country of origin:

Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention[5].

The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed[6].

Rights inside the country of origin:

Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors[7].

INTERNATIONAL PERSPECTIVE

The Berne Convention treaty was firstly signed on 9 September 1886, by Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia, Spain, Switzerland, and Tunisia[8].

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. 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,[9] and making the Universal Copyright Convention nearly obsolete[10]. 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.

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.

INDIAN PERSPECTIVE

India has submitted a declaration relating to Article II and Article III given in appendix containing special provisions regarding developing countries to  World Intellectual Property Organization (WIPO). The declaration has to its effect on March 28, 2018 in India. It provides an access to India to extract  itself faculties provided for Article II and III of the Appendix to Berne Convention till period of October 10, 2024.

Article II allows India to license to translate any work for purpose of teaching, scholarship and research. Article III entitles India to substitute for the exclusive right of reproduction provided  for in Article 9.

The Chancellor, Masters & Scholars of the University of Oxford &Ors. v Rameshwari Photocopy Services &Anr.[11] (CS(OS) 2439/2012), Delhi High Court (Rajiv SahaiEndlaw J)56-A shop named Rameshewari (Defendant no.1) within the premises of Delhi University, providing photocopy services was accused of copyright law violation, as they were printing course book of various chapters from different sources and publications into a single booklet[12].The Delhi University (Defendant no.2) was also accused and made party to the suit as its library was issuing books from which the photocopies were made, besides that the professors were recommending to purchase the photocopied course book because it was tailored according to the Syllabi of the term and the students did not had to refer to different books, herby saving a lot of their time. The suit was filed before the Honorable Delhi High Court in the year 2012, by the publishers (Plaintiffs) namely Oxford University Press, Cambridge University Press United Kingdom, Cambridge University Press India Pvt. Ltd., Taylor & Francis Group, United Kingdom and Taylor & Francis Books India Pvt. Ltd.  The plaintiffs also filed an application for interim injunction to stop the sale of such unauthorized material and the Delhi High Court (Single Bench) granted the injunction and passed an order to stop such authorized sale by the photocopying services, until final decision is made on the case. The Defendants thereafter preferred an appeal before the Divisional Bench of the Delhi High Court and argued that the they are copying the information and printing it for educational purpose and therefore are protected under section 52(1)(a) and 52(1)(h) of the copyright act 1957.

The Division[13] bench vacated the stay order with a reason that the distribution of copied course work is not violation of copyright law when the purpose or use of such information is for education and remanded back the matter to Single Bench for final decision.

 Judge Justice Rajiv Sahai[14] after carefully analyzing the facts pronounced the judgment on 16th of September 2016 in favor of Defendants, contending that replicated production of copyright work as per the instructions of the tutor for instructing students for term subject, falls within the exception of copyright law given under section 52(1) (h)60 of the copyright act, 1967.

CONCLUSION

To sum up, the Berne Convention for the Protection of Literary and Artistic Works 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. The Convention is the most important treaty governing the field of copyright. The Berne Convention acts as a binding force imposing various responsibilities on its member. It was signed to form a copyright-friendly merger of all different countries into a single international copyright law to avoid confusion related to copyright laws. This treaty works on national treatment which means member countries may treat the copyrighted work of their own nationals in any way they choose, but they must treat works from nationals of other treaty members according to minimum treaty standards.

REFERENCES

  • AlhajiTejan- International Copyright Law-Part-1-The Berne Convention for the Protection of Literary and Artistic Works-, 1886-https://www.academia.edu/40068553/INTERNATIONAL_COPYRIGHT_LAW-_PART_I_THE_BERNE_CONVENTION_FOR_THE_PROTECTION_OF_LITERARY_AND_ARTISTIC_WORKS_1886
  • Berne Convention for the Protection of Literary and Artistic Works,1886-https://www.wipo.int/treaties/en/text.jsp?file_id=283698#P421_79913
  • CoenraadVisser and TanaPistorius, Essential Copyright Law, University of South Africa/WIPO Worldwide Academy, 1.2.4
  • Arihant Gupta- Critically discuss the continued the relevance of the Berne Convention for the Protection of Literary and Artistic Works(1886), present day relevance of Berne Convention(case aanalysis), p. 16

[1]CoenraadVisser and TanaPistorius, Essential Copyright Law, University of South Africa/WIPO

Worldwide Academy, 1.2.4

[2] Paul Torremans and Jon Holyoak, Intellectual Property Law, Second Edition, Butterworths, 29.

[3] International Copyright  Law-  The Berne Convention for the Protection of Literary and Artistic Works, 1886 -By AlhajiTejan-Cole

[4] Article 5(4) of the Berne Convention for the Protection of the Literary and Artistic Works

[5] Article 5(1) of the Berne Convention for the Protection of the Literary and Artistic Works

[6] Article 5(2) of the Berne Convention for the Protection of the Literary and Artistic Works

[7] Article 5(3) of the Berne Convention for the Protection of the Literary and Artistic Works

[8]Solberg, Thorvald – Report of the Delegate of the United States to the International Conference for the Revision of the Berne Copyright Convention, Held at Berlin, Germany, 14 October to 14 November 1908. Washington, D.C.: Library of Congress. p.9

[9] Brazilian’s Federal Decree No. 75699 6 May 1975

[10]Molotsky, Irvin “Senate Approves Joining Copyright Convention”. The New York Times.(21 October 1988).

[11]University of Oxford< https://www.law.ox.ac.uk/sites/files/oxlaw/delhi_high_court_copyright_judgment_summary.pdf&gt;

[12]RadhikaOberoi, DU Photocopy Case: What Happened and Why It’s Important (October 2016) The Wire <https://thewire.in/education/du-photocopy-case >

[13]De Coding Indian Intellectual Property Law, The Chancellor, Masters & Scholars of the University of Oxford &Ors v. Rameshwari Photocopy Services &Ors (Du Photocopy Case Spicy IP)  December 2007 <https://spicyip.com/resources-links/du-photocopy-case&gt;

[14]Dr. Arul George Scaria, Delhi University Photocopy Shop Judgment; A Landmark in the access to knowledge Movement in India (September 2016) <https://www.livelaw.in/delhi-university-photocopy-shop-judgementlandmark-access-knowledge-movement-india/&gt;

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