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.
The Berne Convention formally mandated several aspects of modern copyright law; it introduced the concept that a copyright exists the moment a work is "fixed", rather than requiring registration. It also enforces a requirement that countries recognize copyrights held by the citizens of all other parties to the convention.
|Berne Convention for the|
Protection of Literary and Artistic Works
|Signed||9 September 1886|
|Effective||5 December 1887|
|Condition||3 months after exchange of ratifications|
|Depositary||Director General of the World Intellectual Property Organization|
|Languages||signed in French (prevailing in case of differences in interpretation) and English, officially translated in Arabic, German, Italian, Portuguese and Spanish|
|Convention for the Protection of Literary and Artistic Works at Wikisource|
The Berne Convention requires its parties to treat the copyright of works of authors from other parties to the convention (known as members of the Berne Union) at least as well as those 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 harmonised copyright amongst parties, 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. However, when the United States joined the Convention on 1 March 1989, it continued to make statutory damages and attorney's fees only available for registered works.
However, in Moberg v Leygues, a 2009 decision of a Delaware Federal District Court, decided that the protections of the Berne Convention are supposed to essentially be "frictionless," meaning no registration requirements can be imposed on a work from a different Berne member country. This means Berne member countries can require works originating in their own country to be registered and/or deposited, but cannot require these formalities of works from other Berne member countries.
Under Article 3, the protection of the Convention applies to nationals and residents of countries that are party to the convention, and to works first published or simultaneously published (under Article 3(4), "simultaneously" is defined as "within 30 days") in a country that is party to the convention. Under Article 4, it also applies to cinematic works by persons who have their headquarters or habitual residence in a party country, and to architectural works situated in a party country.
The Convention relies on the concept of "country of origin". Often determining the country of origin is straightforward: when a work is published in a party country and nowhere else, this is the country of origin. However, under Article 5(4), when a work is published simultaneously in several party countries (under Article 3(4), "simultaneously" is defined as "within 30 days"), the country with the shortest term of protection is defined as the country of origin.
For works simultaneously published in a party country and one or more non-parties, the party country is the country of origin. For unpublished works or works first published in a non-party country (without publication within 30 days in a party country), the author's nationality usually provides the country of origin, if a national of a party country. (There are exceptions for cinematic and architectural works.)
In the Internet age, unrestricted publication online may be considered publication in every sufficiently internet-connected jurisdiction in the world. It is not clear what this may mean for determining "country of origin". In Kernel v. Mosley, a U.S. court "concluded that a work created outside of the United States, uploaded in Australia and owned by a company registered in Finland was nonetheless a U.S. work by virtue of its being published online". However other U.S. courts in similar situations have reached different conclusions, e.g. Håkan Moberg v. 33T LLC. The matter of determining the country of origin for digital publication remains a topic of controversy among law academics as well.
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.
If the author is unknown, because for example the author was deliberately anonymous or worked under a pseudonym, the Convention provides for a term of 50 years after publication ("after the work has been lawfully made available to the public"). However, if the identity of the author becomes known, the copyright term for known authors (50 years after death) applies.
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.
As to works, protection must include "every production in the literary, scientific and artistic domain, whatever the mode or form of its expression" (Article 2(1) of the Convention).
Subject to certain allowed reservations, limitations or exceptions, the following are among the rights that must be recognized as exclusive rights of authorization:
The Berne Convention includes a number of specific copyright exceptions, scattered in several provisions due to the historical reason of Berne negotiations. For example, Article 10(2) permits Berne members to provide for a "teaching exception" within their copyright statutes. The exception is limited to a use for illustration of the subject matter taught and it must be related to teaching activities.
In addition to specific exceptions, the Berne Convention establishes the "three-step test" in Article 9(2), which establishes a framework for member nations to develop their own national exceptions. The three-step test establishes three requirements: that the legislation be limited to certain (1) special cases; (2) that the exception does not conflict with a normal exploitation of the work, and (c) that the exception does not unreasonably prejudice the legitimate interests of the author.
The Berne Convention does not expressly reference doctrines such as fair use or fair dealing, leading some critics of fair use to argue that fair use violates the Berne Convention. However, the United States and other fair use nations argue that flexible standards such as fair use include the factors of the three-step test, and are therefore compliant. The WTO Panel has ruled that the standards are not incompatible.
The Berne Convention also fails to include Internet safe harbors, as is common in many countries. However, 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.
Critics have argued for years that the Berne Convention is weak in protecting users and consumers from overbroad or harsh infringement claims, with virtually no other exceptions or limitations. In fact, the Marrakesh Copyright Exceptions Treaty for the Blind and Print-Disabled was the first international treaty centered around the rights of users. Treaties featuring exceptions for libraries and educational institutions are also being discussed.
The Berne Convention was developed at the instigation of Victor Hugo 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 works, 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 ratified the Convention.
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 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.
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: 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 completed in Paris in 1886, revised 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 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.
The first version of the Berne Convention treaty was signed on 9 September 1886, by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom. They ratified it on 5 September 1887.
Although the United Kingdom ratified the convention in 1887, it did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act 1988.
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. 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 first to the U.S. ratifying the Buenos Aires Convention (BAC) in 1910, and later the Universal Copyright Convention (UCC) in 1952 to accommodate the wishes of other countries. With the WIPO's Berne revision on Paris 1971, many other countries joined the treaty, as expressed by Brazil federal law of 1975.
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, and making the Universal Copyright Convention nearly obsolete. 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.
The UCC is not nearly as important as it used to be. Indeed, it's close to becoming obsolete
"Author's rights" is a term frequently used in connection with laws about intellectual property.The term is considered as a direct translation of the French term droit d’auteur (also German Urheberrecht). It was indeed first (1777) promoted in France by Pierre-Augustin Caron de Beaumarchais, who had close relations with Benjamin Franklin. It is generally used in relation to the copyright laws of civil law countries and in European Union law. Authors' rights are internationally protected by the Berne Convention for the Protection of Literary and Artistic Works and by other similar treaties. Concerning "work of the spirit", “Author” is used in a very wide sense, and includes composers, artists, sculptors and even architects: in general, the author is the person whose creativity led to the protected work being created, although the exact definition varies from country to country.
Authors’ rights have two distinct components: the economic rights in the work and the moral rights of the author. The economic rights are a property right which is limited in time and which may be transferred by the author to other people in the same way as any other property (although many countries require that the transfer must be in the form of a written contract). They are intended to allow the author or their holder to profit financially from his or her creation, and include the right to authorize the reproduction of the work in any form (Article 9, Berne Convention). The authors of dramatic works (plays, etc.) also have the right to authorize the public performance of their works (Article 11, Berne Convention).
The protection of the moral rights of an author is based on the view that a creative work is in some way an expression of the author’s personality: the moral rights are therefore personal to the author, and cannot be transferred to another person except by testament when the author dies. The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honor or reputation (Article 6bis, Berne Convention). In many countries, the moral rights of an author are perpetual.Berne Convention (1906)
The Berne Convention (formally, the International Convention respecting the Prohibition of the Use of White (Yellow) Phosphorus in the Manufacture of Matches (French: Convention internationale sur l'interdiction de l'emploi du phosphore blanc (jaune) dans l'industrie des allumettes)) of 1906 is a multilateral treaty negotiated in Berne, Switzerland, which prohibits the use of white phosphorus in the manufacture of matches. The treaty also prohibits the import and sale of such matches.
The background to the treaty was the extensive medical problems such as phossy jaw facing workers in match production. The treaty was concluded on 26 September 1906. It entered into force on 1 January 1912. The Convention remains in force for 48 states. Switzerland is the depositary for the treaty.
In 1925 Edward J. Phelan, future Director General of the International Labour Organization, stated that the establishment of the ILO "may in one sense be traced to the Berne Convention of 1906", partly as a result of lobbying by the International Association for Labour Legislation.Berne Convention (disambiguation)
Berne (or Bern) Convention may refer to:
Berne Convention for the Protection of Literary and Artistic Works
Berne Convention on the Conservation of European Wildlife and Natural Habitats (Council of Europe), on nature conservation in Europe
The Treaty of Bern, establishing the General Postal Union
Berne Convention (1906) on the prohibition of white phosphorus in the manufacture of matches.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.Berne Convention on the Conservation of European Wildlife and Natural Habitats
The Bern Convention on the Conservation of European Wildlife and Natural Habitats, also known as the Bern Convention (or Berne Convention), is a binding international legal instrument in the field of Nature Conservation, it covers the natural heritage in Europe, as well as in some African countries.
The Convention was open for signature on 19 September 1979 and came into force on 1 June 1982. It is particularly concerned about protecting natural habitats and endangered species, including migratory species.Copyright
Copyright is a legal right, existing in many countries, that grants the creator of an original work exclusive rights to determine whether, and under what conditions, this original work may be used by others. This is usually only for a limited time. Copyright is one of two types of intellectual property rights, the other is industrial property rights. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use. A major limitation on copyright on ideas is that copyright protects only the original expression of ideas, and not the underlying ideas themselves. Copyright is applicable to certain forms of creative work. Some, but not all jurisdictions require "fixing" copyrighted works in a tangible form. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution. Copyrights can be granted by public law and are in that case considered "territorial rights". This means that copyrights granted by the law of a certain state, do not extend beyond the territory of that specific jurisdiction. Copyrights of this type vary by country; many countries, and sometimes a large group of countries, have made agreements with other countries on procedures applicable when works "cross" national borders or national rights are inconsistent.Typically, the public law duration of a copyright expires 50 to 100 years after the creator dies, depending on the jurisdiction. Some countries require certain copyright formalities to establishing copyright, others recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.
Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the creator's exclusivity of copyright and giving users certain rights. The development of digital media and computer network technologies have prompted reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and inspired additional challenges to the philosophical basis of copyright law. Simultaneously, businesses with great economic dependence upon copyright, such as those in the music business, have advocated the extension and expansion of copyright and sought additional legal and technological enforcement.Copyright licenses can also be granted by those deputized by the original claimant, and private companies may request this as a condition of doing business with them. Services of internet platform providers like YouTube, Facebook, GitHub, Hotmail, DropBox, Instagram, WhatsApp or Twitter only can be used when users grant the platform provider beforehand the right to co-use all uploaded content, including all material exchanged per email, chat or cloud-storage. These copyrights only apply for the firm that operates such a platform, no matter in what jurisdiction the platform-services are being offered. Private companies in general do not recognize exceptions or give users more rights than the right to use the platform according certain rules.Copyright law of Brazil
The basic law on copyright in Brazil is Law No. 9.610 of February 19, 1998, on Copyright and Neighboring Rights. Brazil has signed the Berne Convention and the TRIPS Agreement.Copyright law of Burundi
The basic law on copyright in Burundi is Law No. 1/021 of December 30, 2005, on the Protection of Copyright and Related Rights in Burundi. Burundi has not signed the Berne Convention but it has signed the TRIPS Agreement.Copyright law of Honduras
The main laws relating to copyright in Honduras are the:
Copyright and Neighboring Rights Law (approved by Decree No. 4-99-E)
Industrial Property Law (approved by Decree No. 12-99-E)In addition to these, Honduras has enacted a large number of other laws relating to copyright.
Honduras has signed the Berne Convention.Copyright symbol
The copyright symbol, or copyright sign, © (a circled capital letter C for copyright), is the symbol used in copyright notices for works other than sound recordings. The use of the symbol is described by the Universal Copyright Convention. The symbol is widely recognized, but under the Berne Convention is no longer required to obtain a new copyright in most nations.
In the United States, the Berne Convention Implementation Act of 1988, effective March 1, 1989, removed the requirement for the copyright symbol from U.S. copyright law, but its presence or absence is legally significant on works published prior to that date, and it continues to have effect on remedies available to a copyright holder whose work is infringed.ISC license
The ISC license is a permissive free software license published by the Internet Software Consortium, nowadays called Internet Systems Consortium (ISC). It is functionally equivalent to the simplified BSD and MIT licenses, but without language deemed unnecessary following the Berne Convention.Originally used for ISC software such as BIND and dig, it has become the preferred license for contributions to OpenBSD and the default license for npm packages. The ISC license is also used for Linux wireless drivers contributed by Qualcomm Atheros.International copyright treaties
While no creative work is automatically protected worldwide, there are international treaties which provide protection automatically for all creative works as soon as they are fixed in a medium. There are two primary international copyright agreements, the Universal Copyright Convention and the Berne Convention for the Protection of Literary and Artistic Works.List of parties to international copyright agreements
Below is a list of countries which have signed and ratified one or more multilateral international copyright treaties. This list covers only multilateral treaties (i.e., treaties by more than two countries). It does not include bilateral treaties (treaties between only two countries). Related rights provide intellectual property rights for performers, producers of sound recordings (phonograms) and broadcasting organisations. In some countries these rights are known simply as copyright, while other countries distinguish them from authors' rights: in either case, the international laws which are concerned with them are distinct from those concerned with literary and artistic works under the Berne Convention for the Protection of Literary and Artistic Works and other treaties.Moral rights
Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work allows the author to object to alteration, distortion, or mutilation of the work that is "prejudicial to the author's honor or reputation". Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.Moral rights were first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. Canada recognizes moral rights (droits moraux) in its Copyright Act (Loi sur le droit d'auteur). The United States became a signatory to the convention in 1989, and incorporated a version of moral rights under its copyright law under Title 17 of the U.S. Code.
Some jurisdictions allow for the waiver of moral rights. In the United States, the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but applies only to a narrow subset of works of visual art.Some jurisdictions like Austria differentiate between narrow and wide moral rights. Whilst the former is about integrity of the work, the latter limits usages, which may harm the author's integrity. Some copyright timestamp services allow an author to publish allowed and disallowed usage intentions to prevent a violation of such wider moral rights.Public-domain software
Public-domain software is software that has been placed in the public domain: in other words, there is absolutely no ownership such as copyright, trademark, or patent. Software in the public domain can be modified, distributed, or sold even without any attribution by anyone; this is unlike the common case of software under exclusive copyright, where software licenses grant limited usage rights.
Under the Berne Convention, which most countries have signed, an author automatically obtains the exclusive copyright to anything they have written, and local law may similarly grant copyright, patent, or trademark rights by default. The Berne Convention also covers programs. Therefore, a program is automatically subject to a copyright, and if it is to be placed in the public domain, the author must explicitly disclaim the copyright and other rights on it in some way, e.g. by a waiver statement. In some Jurisdictions, some rights (in particular moral rights) cannot be disclaimed: for instance, civil law tradition-based German law's "Urheberrecht" differs here from the Anglo-Saxon common law tradition's "copyright" concept.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 no more than the copyright term granted in the country of origin of the work.Special Area of Conservation
A Special Area of Conservation (SAC) is defined in the European Union's Habitats Directive (92/43/EEC), also known as the Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora. They are to protect the 220 habitats and approximately 1000 species listed in annex I and II of the directive which are considered to be of European interest following criteria given in the directive. They must be chosen from the Sites of Community Importance by the State Members and designated SAC by an act assuring the conservation measures of the natural habitat.SACs complement Special Protection Areas and together form a network of protected sites across the European Union called Natura 2000. This, in turn, is part of the Emerald network of Areas of Special Conservation Interest (ASCIs) under the Berne Convention.Universal Copyright Convention
The Universal Copyright Convention (UCC), adopted in Geneva, Switzerland, in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention.
The UCC was developed by the United Nations Educational, Scientific and Cultural Organization (UNESCO) as an alternative to the Berne Convention for those states which disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection. These states included developing countries as well as the United States and most of Latin America. The developing countries thought, that the strong copyright protections granted by the Berne Convention overly benefited Western, developed, copyright-exporting nations; whereas the United States and Latin America were already members of the Buenos Aires Convention, a Pan-American copyright convention that was weaker than the Berne Convention. The Berne Convention states also became party to the UCC, so that their copyrights would exist in non-Berne convention states. In 1973, the Soviet Union joined the UCC.
The United States only provided copyright protection for a fixed renewable term, and required, that in order for a work to be copyrighted, it must contain a copyright notice and be registered at the Copyright Office. The Berne Convention, on the other hand, provided for copyright protection for a single term based on the life of the author, and did not require registration or the inclusion of a copyright notice for copyright to exist. Thus, the United States would have to make several major modifications to its copyright law in order to become a party to it. At the time, the United States was unwilling to do so. The UCC thus permits those states, which had a system of protection similar to the United States for fixed terms at the time of signature, to retain them. Eventually, the United States became willing to participate in the Berne convention, and change its national copyright law as required. In 1989, it became a party to the Berne Convention as a result of the Berne Convention Implementation Act of 1988.
Under the Second Protocol of the Universal Copyright Convention (Paris text), protection under U.S. copyright law is expressly required for works published by the United Nations, by UN specialized agencies and by the Organization of American States (OAS). The same requirement applies to other contracting states as well.
Berne Convention states were concerned, that the existence of the UCC would encourage parties to the Berne Convention to leave that convention and adopt the UCC instead. So the UCC included a clause stating, that parties, which were also Berne Convention parties, need not apply the provisions of the Convention to any former Berne Convention state which renounced the Berne Convention after 1951. Thus, any state which has once adopted the Berne Convention, is penalised, if such a state then decides to renounce the Berne Convention, and decides to use the UCC protections instead, as its copyrights might no longer exist in Berne Convention states.
Since almost all countries are either members or aspiring members of the World Trade Organization (WTO), and are thus conforming to the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), the UCC has lost significance.Uruguay Round Agreements Act
The Uruguay Round Agreements Act (URAA; Pub.L. 103–465, 108 Stat. 4809, enacted December 8, 1994) is an Act of Congress in the United States that implemented in U.S. law the Marrakesh Agreement of 1994. The Marrakesh Agreement was part of the Uruguay Round of negotiations which transformed the General Agreement on Tariffs and Trade (GATT) into the World Trade Organization (WTO). One of its effects is to give United States copyright protection to some works that had previously been in the public domain in the United States.
Copyright law by country