This article on ‘The Berne Convention for the Protection of Literary and Artistic Works (1886)‘ was written by Khadeeja Zaidi an intern at Legal Upanishad.
Globally, content is being produced in the hundreds of millions, and regardless of where they live, all artists should be able to proudly display their work. The progressive Berne Convention recognises the necessity to protect one’s unique work internationally and promotes exhibiting the works without reservation. This article attempts to analyse the concept and provisions of the Berne Convention of 1886.
2. What is the Berne Convention?
In order to safeguard the rights of creators and their works on a global scale, this convention was signed in 1886. The pact governed by the World Intellectual Property Organization was ratified by nearly 180 nations. It lays forth the guidelines for how authors, poets, and other authors who create literary and creative works can manage how their works are used. Fundamentally, this agreement was established to harmonise the legislation of several nations into a unified framework with minimum requirements to safeguard works protected by copyright.
The Berne Convention contains 38 articles that are essentially classified into two groups:
- Article 1-21: They cover the participating states’ rights, responsibilities, and duties.
- Article 22-38: They discuss the convention’s administrative and concluding provisions.
Giving writers’ rights in both literary as well as artistic works some consistency was the convention’s main goal. Some fundamental ideas are contained in the convention. The first and fundamental rule stated that there ought to be a national treatment concept, which specifies that if a piece of art was created in one of the member nations, it should be treated as having been created in all states and given the same rights as it would in its home country. Aside from the national treatment individuals receive, it is crucial that this protection be given automatically and without the need for registration in that nation.
This convention’s coverage of “folklore”-related works and phrases is yet another crucial clause. Folklore is just an old tradition that is preserved by the members of a culture and is handed down through the family. Now, the music, folklore, and even myths make up this heritage and history. Due to such a principle, both published and unpublished works are protected.
The convention must function for the advantage of both authors and his or her title successors, according to Article 2(6) of the agreement. Due to this, Article 7 stipulates that protection must last for at least 50 years after the author’s passing and for the entirety of their life. When a film is released to the public or, in the case of a cinematographic work, when it is not released until more than 50 years after the film was created, it is protected for 50 years.
As a result of this agreement, the works of its writers are automatically secured from plagiarism in other nations, helping them increase their market share and generate income. This convention has proven advantageous for the member countries.
After being first adopted in 1886, the Berne Convention underwent numerous revisions and amendments before taking on its most recent form in 1979.
3. What type of Copyright protection does it offer?
The Berne Convention established a minimal copyright duration of 50 years following the author’s death for all physical works. The creations of photographs and cinematography are the sole exceptions to the protected term. The minimum protection time in this situation is 25 years from the moment the photo was taken for photographs, and 50 years from the production or release time of filmmaking.
The agreement guarantees that these innovative people’s privileges will not be taken away from them. The Berne Convention also guarantees that writers as well as artists have the right to genuine control over how their works are modified, shared, and reproduced. The international legislation expects its signatory nations to provide a set of baseline requirements and to seek particular clauses when it comes to executing copyright laws, in addition to providing the groundwork for an impartial and uniform approach to recognising the copyrights of works from various countries.
4. The Principles
The Berne Convention is based on three fundamental ideas:
4.1. National Treatment
Participants of the Berne Union must respect works initially released in any one of the Union nations, as well as all works by the author who is a native of a Union nation, in the same way, that they would safeguard their nationals’ works.
4.2. Automatic Protection
The protection provided by the concept of national protection has to be unconditionally and not subject to any formalities.
4.3. Independence of Protection
The level of protection provided under the Berne Convention is independent of the level of protection in the nation where the creation was first made. In some cases, the contracting nation may opt to extend the work’s protection beyond the convention’s minimum time frame. If the works are no longer protected in the nation of origin, the protections might even be revoked.
5. Minimum Standards of the Berne Convention
5.1. Works eligible for protection
A copyright must be granted to “any creation in the literary, scientific, and creative sphere, regardless of the style or form of its expression,” as stated in Article 2(1) of the Convention.
5.2. Rights under Berne Convention
The Member State shall regard the foregoing rights as exclusive licensing rights:
- the freedom to introduce musicals and shows out in public;
- the ability to publicly recite;
- the ability to telecast;
- the ability to inform the public about the performances of such arts;
- a licence to translate;
- having the right to modify and organise the work;
- the ability to copy the content in any way;
- the ability to use a piece as the foundation for an audiovisual creation;
- Moral rights: the right to assert ownership and the right to protest any alterations, alterations, or dishonourable actions that jeopardise the author’s honour and reputation.
Generally speaking, Berne’s convention safeguarding literary as well as artistic creations end 50 years following the author’s passing. The protection of anonymous or pseudonymous works might last for 50 years following they become well recognised. The protection will end 50 years following the author’s passing if the author can be identified or if they acknowledge themselves as the creator and claim ownership of the work during the immunity period.
Applied art and photographed creations are protected for at least 25 years after they are created.
Cinematographic (audio-visual) works can be protected for at least 50 years after they are made public (release). Such works are protected for 50 years after they are created if they are not publicised.
India, being a Berne Union member, adheres to the International Copyright Order (1999). It safeguards the original works of ex-pats living in Berne Union nations from infringement. Regardless matter where the original work was made, Indian copyright laws apply to any kind of work released here.
The Berne Convention is indeed a blessing for authors, painters, poets, and other professionals associated with all sorts of artistic as well as literary activities since it allows them to release their work freely on a global platform.
8. List of References:
- Berne Convention for the Protection of Literary and Artistic Works, WIPO, available at: https://www.wipo.int/treaties/en/ip/berne/#:~:text=The%20Berne%20Convention%2C%20adopted%20in,whom%2C%20and%20on%20what%20terms.
- Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), Techopedia, available at: https://www.techopedia.com/definition/26404/berne-convention-for-the-protection-of-literary-and-artistic-works-berne-convention
- Berne Convention For The Protection of Literary and Artistic Works, Intepat, 23 April 2020, available at: https://www.intepat.com/blog/berne-convention-literary-artistic-works/