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From Wikipedia, the free encyclopedia
For other uses, see Berne Convention (disambiguation).
Berne Convention
Berne Convention for the
Protection of Literary and Artistic Works

Map of parties to the Convention

Signed 9 September 1886
Location Bern, Switzerland
Effective 5 December 1887
Condition 3 months after exchange of ratifications
Parties 181
Depositary Director General of the World Intellectual Property Organization
Languages French (prevailing in case of differences in interpretation) and
English, officially translated in Arabic, German, Italian, Portuguese and Spanish
Full text
Convention for the Protection of Literary and Artistic Works at Wikisource
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 of agreeing 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, border-crossing system
that became known under the same name. Its rules have been updated many times since
then.[1][2] The treaty provides authors, musicians, poets, painters, and other
creators with the means to control how their works are used, by whom, and on what
terms.[3] In some jurisdictions these type of rights are referred to as copyright;
on the European continent they are generally referred to as author' rights (from
French: droits d'auteur) or makerright (German: Urheberrecht).

As of November 2022, the Berne Convention has been ratified by 181 states out of
195 countries in the world, most of which are also parties to the Paris Act of
1971.[4][5]

The Berne Convention introduced the concept that protection exists the moment a
work is "fixed", that is, written or recorded on some physical medium, and 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. A creator need not register or "apply for" a copyright in
countries adhering to the convention. It also enforces a requirement that countries
recognize rights held by the citizens of all other parties to the convention.
Foreign authors are given the same rights and privileges to copyrighted material as
domestic authors in any country that ratified the convention. The countries to
which the convention applies created a Union for the protection of the rights of
authors in their literary and artistic works, known as the Berne Union.

Content
The Berne Convention requires its parties to recognize the protection of works of
authors from other parties to the convention at least as well as those of its own
nationals. For example, French authors' rights law applies to anything published,
distributed, performed, or in any other way accessible in France, regardless of
where it was originally created, if the country of origin of that work is in the
Berne Union.

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.

Author's rights 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,[6] it continued to make statutory damages and attorney's fees only
available for registered works.

However, Moberg v Leygues (a 2009 decision of a Delaware Federal District Court)

held 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.[7]

Applicability
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")[8] in a country that is party to the convention.[8]
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.[9]

Country of origin
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" ("within 30 days")[8] in several party
countries,[8] the country with the shortest term of protection is defined as the
country of origin.[10]

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.)[10]

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 (2011),
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 (2009).
[11] The matter of determining the country of origin for digital publication
remains a topic of controversy among law academics as well.[12]

Term of protection
The Berne Convention states that all works except photographic and cinematographic
shall be protected for at least 50 years after the author's death, but parties are
free to provide longer terms,[13] 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 has not 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.[citation needed]

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.[13]

Although the Berne Convention states that the legislation of the country where
protective rights are 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",[13] i.e., an author is normally
not entitled a longer protection 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.

Minimum standards
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 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 (with the possibility that a Contracting State may provide
for a mere right to equitable remuneration instead of a right of authorization),
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 audiovisual work, and the right to
reproduce, distribute, perform in public or communicate to the public that
audiovisual work.
Exceptions and limitations
The Berne Convention includes a number of specific exceptions, scattered in several
provisions due to the historical reason of Berne negotiations.[citation needed] 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.[14]

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
(3) 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.[15][16] 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.[17]

The Berne Convention does not include the modern concept of Internet safe harbors,
simply because Internet was not known as a technology at that time. 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."[18] This language may mean that Internet service
providers are not liable for the infringing communications of their users.[18]

Since companies are using internet to publish user generated content, critics have
argued that the Berne Convention is weak in protecting users and consumers from
overbroad or harsh infringement claims, with virtually no other exceptions or
limitations.[19] 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.[citation needed]

History

The Pirate Publisher—An International Burlesque that has the Longest Run on Record,
from Puck, 1886, satirizes the ability of publishers to take works from one country
and publish them in another without paying the original authors.
The Berne Convention was developed at the instigation of Victor Hugo[20] of the
Association Littéraire et Artistique Internationale.[21] Thus it was influenced by
the French "rights of the author" (droits d'auteur), which contrasts with the
Anglo-Saxon concept of "copyright" which only dealt with economic concerns.[22]

Before the Berne Convention, copyright legislation remained uncoordinated at an

international level.[23] 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.[24]

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.[25]

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.[26] In 1960, BIRPI moved to Geneva,
to be closer to the United Nations and other international organizations in that
city.[27] In 1967 it became the World Intellectual Property Organization (WIPO),
and in 1974 became an organization within the United Nations.[26]

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.[28]

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.[29]

Adoption and implementation

Main article: List of parties to 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.[30] They ratified it on 5 September 1887.[31]

Although Britain 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.[32][31] 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,[33] many other countries joined the treaty, as expressed by
Brazil federal law of 1975.[34]

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,[35] and making the Universal
Copyright Convention nearly obsolete.[36] 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 (TRIPS) requires non-
members to accept almost all of the conditions of the Berne Convention.

As of October 2022, there are 181 states that are parties to the Berne Convention.
This includes 178 UN member states plus the Cook Islands, the Holy See and Niue.

Prospects for future reform

The Berne Convention was intended to be revised regularly in order to keep pace
with social and technological developments. It was revised seven times between its
first iteration (in 1886) and 1971, but has seen no substantive revision since
then.[37] That means its rules were decided before widespread adoption of digital
technologies and the internet. In large part, this lengthy drought between
revisions comes about because the Treaty gives each member state the right to veto
any substantive change. The vast number of signatory countries, plus their very
different development levels, makes it exceptionally difficult to update the
convention to better reflect the realities of the digital world.[38] In 2018,
Professor Sam Ricketson argued that anyone who thought that further revision would
ever be realistic was "dreaming".[39]

Berne members also cannot easily create new copyright treaties to address the
digital world's realities, because the Berne Convention also prohibits treaties
that are inconsistent with its precepts.[40]

Legal academic Rebecca Giblin has argued that one reform avenue left to Berne
members is to "take the front door out". The Berne Convention only requires member
states to obey its rules for works published in other member states – not works
published within its own borders. Thus member nations may lawfully introduce
domestic copyright laws that have elements prohibited by Berne (such as
registration formalities), so long as they only apply to their own authors. Giblin
also argues that these should only be considered where the net benefit would be to
benefit authors.[41]

List of countries and regions that are not signatories to the Berne Convention
[6]

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)
See also
Berne Convention Implementation Act of 1988
Berne three-step test
Buenos Aires Convention
Droit de suite
List of parties to international copyright agreements
Copyright of official texts
Post-colonial copyright crisis
Public domain
Rome Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organisations
Universal Copyright Convention
World Trade Organization Dispute 160
References
"WIPO - Berne Convention for the Protection of Literary and Artistic Works".
WEX Definitions Team. "Berne Convention". Cornell Law School.
"Summary of the Berne Convention". World Intellectual Property Organization.
"WIPO Lex". wipolex.wipo.int. Retrieved 1 September 2021.
Berne Convention for the Protection of Literary and Artistic Works, Status October
1, 2020 (PDF). World Intellectual Property Organization. 2020.
Circular 38A: International Copyright Relations of the United States (PDF). U.S.
Copyright Office. 2014. p. 2. Retrieved 5 March 2015.
Borderless Publications, the Berne Convention, and U.S. Copyright Formalities,
Jane C. Ginsburg, The Media Institute, 20 October 2009,
https://www.mediainstitute.org/2009/10/20/borderless-publications-the-berne-
convention-and-u-s-copyright-formalities/ (Retrieved 18 May 2018)
Berne Convention [1] Archived 23 May 2018 at the Wayback Machine.
Berne Convention [2] Archived 23 May 2018 at the Wayback Machine.
Berne Convention [3] Archived 23 May 2018 at the Wayback Machine.
Fitzgerald, Brian F., Shi, Sampsung Xiaoxiang, Foong, Cheryl, & Pappalardo, Kylie
M. (2011), "Country of Origin and Internet Publication : Applying the Berne
Convention in the Digital Age". Journal of Intellectual Property (NJIP) Maiden
Edition, pp. 38–73.
See for example the columns of Jane Ginsburg:
Borderless Publications, the Berne Convention, and U.S. Copyright Formalities
Internet Publication and U.S. Copyright Imperialism
When a Work Debuts on the Internet, What Is its Country of Origin? Part II
And the article
Chris Dombkowski, SIMULTANEOUS INTERNET PUBLICATION AND THE BERNE CONVENTION, SANTA
CLARA COMPUTER & HIGH TECH. L.J., vol. 29, pp 643-674
Berne Convention Article 7.
Drier, Thomas; Hugenholtz, P. Bernt (2016). Concise European Copyright Law (2
ed.). Wolters Kluwer.
Okediji, Ruth. "Toward an International Fair Use Doctrine". Columbia Journal of
Transnational Law. 39: 75. Retrieved 3 August 2018.
Travis, Hannibal (2008). "Opting Out of the Internet in the United States and the
European Union: Copyright, Safe Harbors, and International Law". Notre Dame Law
Review, vol. 84, p. 383. President and Trustees of Notre Dame University in South
Bend, Indiana. SSRN 1221642.
See United States - Section 110(5) of the U.S. Copyright Act.
Travis, p. 373.
There Can Be No 'Balance' In The Entirely Unbalanced System Of Copyright –
Techdirt, Mike Masnick, 1 March 2012
"Quick Berne Convention Overview". Laws.com. 4 April 2015. Retrieved 12 June 2018.
Dutfield, Graham (2008). Global Intellectual Property Law. Edward Elger Pub. pp.
26–27. ISBN 978-1-843769422.
Baldwin, Peter (2016). The Copyright Wars: Three Centuries of Trans-Atlantic
Battle. Princeton University Press. p. 15. ISBN 978-0-691169095.
"A Brief History of Copyright". Intellectual Property Rights Office.
"The Netherlands and the Berne Convention". The Publishers' circular and
booksellers' record of British and foreign literature, Vol. 71. Sampson Low,
Marston & Co. 1899. p. 597. Retrieved 29 August 2010.
"Summary of the Paris Convention for the Protection of Industrial Property
(1883)". World Intellectual Property Organization. Retrieved 30 June 2018.
"WIPO - A Brief History". World Intellectual Property Organization. Retrieved 12
June 2018.
Cook, Curtis (2002). Patents, Profits & Power: How Intellectual Property Rules the
Global Economy. Kogan Page. p. 63. ISBN 978-0-749442729.
"Berne Convention for the Protection of Literary and Artistic Works". World
Intellectual Property Organization. Archived from the original on 23 May 2018.
Retrieved 12 June 2018.
"WIPO Copyright Treaty". World Intellectual Property Organization. Retrieved 12
June 2018.
Solberg, Thorvald (1908). 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.
"Contracting Parties > Berne Convention (Total Contracting Parties : 173)". WIPO -
World Intellectual Property Organization. WIPO. Retrieved 4 April 2017.
"Treaties in Force – A List of Treaties and Other International Agreements of the
United States in Force on January 1, 2016" (PDF). www.state.gov.
WIPO's "Berne Convention for the Protection of Literary and Artistic Works (Paris
Text 1971)", http://zvon.org/law/r/bern.html
Brazilian's Federal Decree No. 75699 6 May 1975.
urn:lex:br:federal:decreto:1975;75699
Molotsky, Irvin (21 October 1988). "Senate Approves Joining Copyright Convention".
The New York Times. Retrieved 22 September 2011.
Fishman, Stephen (2011). The Copyright Handbook: What Every Writer Needs to Know.
Nolo Press. p. 332. ISBN 978-1-4133-1617-9. OCLC 707200393. The UCC is not nearly
as important as it used to be. Indeed, it's close to becoming obsolete
"Berne Convention for the Protection of Literary and Artistic Works". World
Intellectual Property Organisation.
Ricketson, Sam (2018). "The International Framework for the Protection of Authors:
Bendable Boundaries and Immovable Obstacles". Columbia Journal of Law & the Arts.
41: 341, 348–352. Archived from the original on 25 December 2018. Retrieved 29 July
2019.
Ricketson, Sam (2018). "The International Framework for the Protection of Authors:
Bendable Boundaries and Immovable Obstacles". Columbia Journal of Law & the Arts.
41: 341, 353 (2018) (citing iconic Australian film "The Castle"). Archived from the
original on 25 December 2018. Retrieved 29 July 2019.
Berne Convention, Article 20.
Giblin, Rebecca (2019). A Future of International Copyright? Berne and the Front
Door Out. Cambridge: Cambridge University Press. SSRN 3351460.
External links

Wikisource has original text related to this article:

Berne Convention

Wikimedia Commons has media related to Berne Convention.

The full text of the Berne Convention for the Protection of Literary and Artistic
Works (as amended on 28 September 1979) (in English) in the WIPO Lex database –
official website of WIPO.
"Guide to the Berne Convention for the Protection of Literary and Artistic Works
(Paris text, 1971)" (PDF). WIPO. Geneva: World Intellectual Property Organization.
1978.
WIPO-Administered Treaties (in English) in the WIPO Lex database – official website
of WIPO.
The 1971 Berne Convention text – fully indexed and crosslinked with other documents
Texts of the various Berne Convention revisions:
1886 Berne Act
1896 Paris Additional Act
1908 Berlin Act
1914 Additional Protocol
1928 Rome Act
1948 Brussels Act
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VenezuelaTreaties of VietnamTreaties of YemenTreaties of ZambiaTreaties of
YugoslaviaTreaties of Zimbabwe1886 in SwitzerlandTreaties extended to Ashmore and
Cartier IslandsTreaties extended to the Australian Antarctic TerritoryTreaties
extended to Christmas IslandTreaties extended to the Cocos (Keeling)
IslandsTreaties extended to the Coral Sea IslandsTreaties extended to Heard Island
and McDonald IslandsTreaties extended to Norfolk IslandTreaties extended to the
Netherlands AntillesTreaties extended to ArubaTreaties extended to the Isle of
ManTreaties extended to West BerlinTreaties extended to GuernseySeptember 1886
eventsEvents in Bern
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