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 Swiss may refer to: * the adjectival form of Switzerland * Swiss people Places * Swiss, Missouri * Swiss, North Carolina *Swiss, West Virginia * Swiss, Wisconsin Other uses *Swiss-system tournament, in various games and sports *Swiss Internation ...

city of

Bern german: Berner(in)french: Bernois(e) it, bernese , neighboring_municipalities = Bremgarten bei Bern, Frauenkappelen, Ittigen, Kirchlindach, Köniz, Mühleberg, Muri bei Bern, Neuenegg, Ostermundigen, Wohlen bei Bern, Zollikofen , website ...

by ten European countries with the goal to agree on a set of legal principles for the protection of

original work Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...

. They drafted and adopted a multi-party

contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...

containing agreements for a uniform, crossing border system that became known under the same name. Its rules have been updated many times since then. The

treaty A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations An international organization or international o ...

provides authors, musicians, poets, painters, and other creators with the means to control how their works are used, by whom, and on what terms. In some jurisdictions these type of rights are being referred to as

copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...

. The United States became a party in 1989. 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. The Berne Convention introduced the concept that protection exists the moment 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 work In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work (the underlying work). The derivative work becomes a second, separate work independent in fo ...

s, unless and until the author explicitly disclaims them or until the copyright expires. A creator need not

register Register or registration may refer to: Arts entertainment, and media Music * Register (music), the relative "height" or range of a note, melody, part, instrument, etc. * ''Register'', a 2017 album by Travis Miller * Registration (organ), th ...

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 copyright law The ''droit d'auteur'' (or French copyright law) developed in the 18th century at the same time as copyright developed in the United Kingdom. Based on the " right of the author" (''droit d'auteur'') instead of on "copyright", its philosophy and te ...

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. 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 Attorney's fee is a chiefly United States term for compensation for legal services performed by an attorney ( lawyer or law firm) for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Recent studies suggest that when ...

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.

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") 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.

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") in several party countries,Berne Conventio

. the country with the Rule of shorter term, shortest term of protection is defined as the country of origin.Berne Conventio

. 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 '' Timbaland plagiarism controversy, 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 Finland ( fi, Suomi ; sv, Finland ), officially the Republic of Finland (; ), is a Nordic country in Northern Europe. It shares land borders with Sweden to the northwest, Norway to the north, and Russia to the east, with the Gulf of B ...

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). The matter of determining the country of origin for digital publication remains a topic of controversy among law academics as well.

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,Berne Conventio
Article 7
as the

European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...

did with the 1993

Directive on harmonising the term of copyright protection Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights is a European Union directive in the field of EU copyright law, made under the internal market provisions of the Treaty o ...

. 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. 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 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", 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 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 tre ...

". 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. 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 The Berne three-step test is a clause that is included in several international treaties on intellectual property. Signatories of those treaties agree to standardize possible limitations and exceptions to exclusive rights under their respective ...

" 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 Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...

fair dealing Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations. Fair dealing is an en ...

, 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 does not include the modern concept of ''Internet safe harbors'', simply because Internet wasn't known as a technology at that time. The Agreed Statement of the parties to the

WIPO Copyright Treaty The World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty or WCT) is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides addi ...

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."Travis, p. 373. This language may mean that Internet service providers are not liable for the infringing communications of their users. Since companies are using internet to publish

user generated content User-generated content (UGC), alternatively known as user-created content (UCC), is any form of content, such as images, videos, text, testimonials, and audio, that has been posted by users on online platforms such as social media, discussion f ...

, 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. 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.

History

Joseph Ferdinand Keppler - The Pirate Publisher - Puck Magazine - Restoration by Adam Cuerden

The Berne Convention was developed at the instigation of

Victor Hugo Victor-Marie Hugo (; 26 February 1802 – 22 May 1885) was a French Romantic writer and politician. During a literary career that spanned more than sixty years, he wrote in a variety of genres and forms. He is considered to be one of the great ...

of the

Association Littéraire et Artistique Internationale The Association Littéraire et Artistique Internationale (ALAI) was founded in 1878 in Paris. Victor Hugo was the honorary president and founder of the association. The group gave itself the objective of creating an international convention for th ...

. 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. 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 Albertus Willem Sijthoff (30 June 1829 – 29 July 1913) was a prominent Dutch publisher from Leiden, Netherlands. Early life Sijthoff was born in 1829 to an established family in Leiden. He was educated at the Stedelijk Gymnasium in Leiden, whi ...

, who rose to prominence in the trade of translated books, wrote to Queen

Wilhelmina of the Netherlands Wilhelmina (; Wilhelmina Helena Pauline Maria; 31 August 1880 – 28 November 1962) was Queen of the Netherlands from 1890 until her abdication in 1948. She reigned for nearly 58 years, longer than any other Dutch monarch. Her reign saw World Wa ...

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 The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on 20 March 1883, was one of the first intellectual property treaties. It established a Union for the protection of industrial property. The convention is c ...

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 The United International Bureaux for the Protection of Intellectual Property (BIRPI) was an international organization. It was set up in 1893 to administer the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convent ...

(best known by its French acronym BIRPI), situated in Berne. In 1960, BIRPI moved to

Geneva Geneva ( ; french: Genève ) frp, Genèva ; german: link=no, Genf ; it, Ginevra ; rm, Genevra is the List of cities in Switzerland, second-most populous city in Switzerland (after Zürich) and the most populous city of Romandy, the French-speaki ...

, to be closer to the United Nations and other international organizations in that city. In 1967 it became the

World Intellectual Property Organization The World Intellectual Property Organization (WIPO; french: link=no, Organisation mondiale de la propriété intellectuelle (OMPI)) is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishi ...

(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 Brussels (french: Bruxelles or ; nl, Brussel ), officially the Brussels-Capital Region (All text and all but one graphic show the English name as Brussels-Capital Region.) (french: link=no, Région de Bruxelles-Capitale; nl, link=no, Bruss ...

in 1948, in

Stockholm Stockholm () is the Capital city, capital and List of urban areas in Sweden by population, largest city of Sweden as well as the List of urban areas in the Nordic countries, largest urban area in Scandinavia. Approximately 980,000 people liv ...

in 1967 and in Paris in 1971, and was amended in 1979. The

World Intellectual Property Organization Copyright Treaty The World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty or WCT) is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides add ...

was adopted in 1996 to address the issues raised by information technology and the Internet, which were not addressed by the Berne Convention.

Adoption and implementation

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 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 Copyright, Designs and Patents Act 1988c 48, also known as the CDPA, is an Act of the Parliament of the United Kingdom that received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law ( ...

. 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 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. The moral rights include the right of attribution, the right to have a work pu ...

, 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 The Buenos Aires Convention (Third Pan-American Convention) is an international copyright treaty signed in Buenos Aires, Argentina, on 11 August 1910, providing mutual recognition of copyrights where the work carries a notice containing a state ...

(BAC) in 1910, and later the

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 Educati ...

(UCC) in 1952 to accommodate the wishes of other countries. With the WIPO's Berne revision on Paris 1971,WIPO's "Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)", http://zvon.org/law/r/bern.html many other countries joined the treaty, as expressed by

Brazil Brazil ( pt, Brasil; ), officially the Federative Republic of Brazil (Portuguese: ), is the largest country in both South America and Latin America. At and with over 217 million people, Brazil is the world's fifth-largest country by area ...

federal law of 1975.Brazilian's Federal Decree No. 75699 6 May 1975
urn:lex:br:federal:decreto:1975;75699
/ref> 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 In several fields, especially computing, deprecation is the discouragement of use of some terminology, feature, design, or practice, typically because it has been superseded or is no longer considered efficient or safe, without completely removing ...

as well. Since almost all nations are members of the

World Trade Organization The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation in the United Nations System, governments use the organization to establish, revise, and e ...

, the

Agreement on Trade-Related Aspects of Intellectual Property Rights The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...

(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 The United Nations member states are the sovereign states that are members of the United Nations (UN) and have equal representation in the UN General Assembly. The UN is the world's largest intergovernmental organization. The criteria ...

plus the

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, the

Holy See The Holy See ( lat, Sancta Sedes, ; it, Santa Sede ), also called the See of Rome, Petrine See or Apostolic See, is the jurisdiction of the Pope in his role as the bishop of Rome. It includes the apostolic episcopal see of the Diocese of Rome ...

and

Niue Niue (, ; niu, Niuē) is an island country in the South Pacific Ocean, northeast of New Zealand. Niue's land area is about and its population, predominantly Polynesian, was about 1,600 in 2016. Niue is located in a triangle between Tong ...

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. 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. In 2018, Professor Sam Ricketson argued that anyone who thought that further revision would ever be realistic was "dreaming". 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. Legal academic Dr. 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.

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

* (but joined

TRIPS Agreement The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...

) * * (but joined

as observer) * (but joined

as observer) * * (but joined

) * * (but joined

) * * * (but joined

) * (but joined

as observer) * (but joined

as ) * (but joined

(Paris) as observer)

References

External links

* The full text of th
Berne Convention for the Protection of Literary and Artistic Works (as amended on 28 September 1979)
in the

WIPO Lex WIPO Lex is an online global database launched in 2010, which provides free public access to intellectual property laws, treaties and judicial decisions from around the world. The World Intellectual Property Organization (WIPO) maintains and devel ...

database – official website of

WIPO The World Intellectual Property Organization (WIPO; french: link=no, Organisation mondiale de la propriété intellectuelle (OMPI)) is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishin ...

.
WIPO-Administered Treaties
in the