lotus

previous page: 3.12) Why is there so little in this FAQ about patents?
  
page up: Copyright Law FAQ
  
next page: 4.2) Is Freedonia a signatory to either the Berne Convention or to the Universal Copyright Convention?

4.1) What international treaties exist governing copyright, or "What is this Berne Convention I keep hearing about?"




Description

This article is from the Copyright Law FAQ, by Terry Carroll with numerous contributions by others.

4.1) What international treaties exist governing copyright, or "What is this Berne Convention I keep hearing about?"

The two major treaties governing copyright are the Berne Convention (U.S.
Senate Treaty Doc. 99-27, KAV 2245, 1 B.D.I.E.L. 715; also reprinted at
17 U.S.C.A. 104). and the Universal Copyright Convention (U.C.C.), (25
U.S.T. 1341, T.I.A.S. 7868, 1 B.D.I.E.L. 813 (1971 Paris text); and 6
U.S.T. 2731, T.I.A.S. 3324, 216 U.N.T.S. 132 (1952 Geneva text)). (Note:
the abbreviation U.C.C. to denote the Universal Copyright Convention
should not be confused with the same abbreviation to denote the Uniform
Commercial Code.)

The Berne Convention for the Protection of Literary and Artistic Works
was established in 1886 in Berne, Switzerland. The text has been
revised, and the current edition (and the one to which the United States
and most other nations are a signatory) is the 1971 Paris text. The
treaty is administered by the World Intellectual Property Organization
(WIPO), an international organization headquartered in Geneva,
Switzerland.

The Berne Convention has four main points: National treatment,
preclusion of formalities, minimum terms of protection, and minimum
exclusive rights.

National treatment: Under Berne, an author's rights are respected in
another country as though the author were a national (citizen) of that
country (Art. 5(1)). For example, works by U.S. authors are protected by
French copyright in France, and vice versa, because both the U.S. and
France are signatories to Berne.

Preclusion of formalities: Under Berne, copyright cannot be dependent on
formalities such as registration or copyright notice (Art. 5(2)).
However, as noted in sections 2.5 and 2.7, this provision apparently does
not prevent a member nation from taking adherence to formalities into
account when determining what remedies apply.

Minimum terms of protection: Under Berne, the minimum duration for
copyright protection is the life of the author plus 50 years (Art. 7(1)).
Signatory nations may have provide longer durations if they so choose.

Minimum exclusive rights: Under Berne, a nation must provide for
protection of six rights: translation (Art. 8(1)), reproduction (Art.
9(1)), public performance (Art. 11(1), and Art. 11ter), adaptation (Art.
12), paternity (Art. 6bis(1)) and integrity (Art. 6bis(1)). In certain
of these areas, U.S. copyright law does not quite align with Berne. For
example, Berne requires that the paternity and integrity rights endure
for the same term as the other rights (Art. 6bis(2)), while in the U.S.,
those rights terminate at the death of the author (17 U.S.C. 106A(e)).
The two have been reconciled by the premise that other sources of federal
law, such as trademark, combined with the trademark, unfair competition,
and defamation laws of the individual states, satisfy these requirements.

The Universal Copyright Convention was originally written in 1952 in
Geneva. It became effective in 1955. Like the Berne Convention, the
text has been revised. As with the Berne Convention, the most recent
revision was in Paris in 1971. The United States is party to both the
1952 Geneva text and the 1971 Paris text. The U.C.C. is administered by
UNESCO, a United Nations agency.

Like Berne, the UCC requires national treatment for authors. However,
the UCC differs from Berne in four material ways. First, the UCC permits
(but does not require) member states to require formalities such as
copyright notice and registration as a condition of copyright (Art. III).
Second, copyright duration must be until least 25 years after the
author's death or after the first publication, depending on whether a
nation calculates duration based on the author's life or on publication
(Art. IV). Third, the UCC's provisions on minimum rights are
considerably less demanding than Berne's; the UCC demands recognition
only of the rights to reproduce, adapt, and to publicly perform or
broadcast the work. Furthermore, the UCC expressly permits a nation to
make exceptions to these rights, as long as the exceptions do not
conflict with the spirit of the treaty (Art. IVbis). Fourth and finally,
the UCC recognizes the Berne Convention, and includes language so that,
between two nations which are signatories to both Berne and the UCC, the
Berne Convention controls and the UCC does not apply. Furthermore, if a
nation is a signatory to both conventions, and withdraws from Berne, it
will not be protected by the UCC (Art. XVII and Appendix). These
provisions were added by nations fearing that creation of the UCC in 1955
would undermine the already existing Berne Convention.

The United States was the primary mover behind the creation of the
U.C.C., because the formalities that existed in U.S. copyright law at
that time did not permit adherence to Berne. With the U.S. joining
Berne, and consequently abandoning the formalities that were the driving
force behind the U.C.C., the significance of the U.C.C. is waning.

In addition to Berne and the UCC, other copyright treaties include the
1971 Geneva Convention for the Protection of Producers of Phonograms
Against Unauthorized Duplication of Their Phonograms (25 U.S.T. 309,
T.I.A.S. 7808, 888 U.N.T.S. 67), the 1984 Brussels Convention Relating to
the Distribution of Programme-Carrying Signals Transmitted by Satellite
(T.I.A.S. 11078), and the 1911 Buenos Aires Convention on Literary and
Artistic Copyrights (38 Stat. 1785, T.S. 593, 1 Bevans 758), which
regulated copyright in the Americas. The U.S. did not sign the Buenos
Aires Convention when it was revised in 1948, and all of its signatories
are now also signatories to either or both of Berne or the UCC. The
Buenos Aires Convention is now essentially a dead letter in international
copyright law.

The texts of both versions of the U.C.C., the Buenos Aires Convention,
and the Geneva Convention, are in Circular 38c, "International Copyright
Conventions," available from the Copyright Office (see section 5.1).
Texts of the Berne Convention and the U.C.C. are available by anonymous
FTP from the Multilaterals Project (see section 5.2).

 

Continue to:













TOP
previous page: 3.12) Why is there so little in this FAQ about patents?
  
page up: Copyright Law FAQ
  
next page: 4.2) Is Freedonia a signatory to either the Berne Convention or to the Universal Copyright Convention?