CENTENARY OF THE BERNE CONVENTION

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INTRODUCTION

Scope and Organization of the Present Article

The present article is intended to commemorate the hundredth anniversary of the Berne Convention for the Protection of Literary and Artistic Works, adopted and signed on September 9, 1886. The present article was written during the first months of 1986.

It tells the story of the Berne Convention and the Berne Union from their beginnings until 1986, the year of the centenary of the Berne Convention. It does not, however, deal with the evolution of the substantive law provision of the Berne Convention. That evolution is recounted in what is really the only authentic way in the official reports of the various diplomatic conferences that prepared the original (1886) text of the Convention and adopted the various, so-called "revised," texts of the Convention.

The present article narrates the history of those diplomatic conferences and of the evolution of the membership of the Berne Union. They are Parts I and II, respectively, of the present article.

Part III of the present article gives, briefly, the history of the administrative clauses of the Berne Convention, that is, the clauses that deal with the concept of a "Union" as it concerns the Berne Union, with the organs of the Berne Union, namely, the Assembly, the Conference of Representatives, the Executive Committee (and its predecessor, the Permanent Committee) and with the finances of the Berne Union. The same part (Part III) also contains information on the past and the present staff of the International Bureau, and about the persons who headed that Bureau. Finally, it outlines the relations of the Berne Union with the World Intellectual Property Organization (whose "International Bureau" is (also) the secretariat of the Berne Union) and with the United Nations.

The last part, Part IV, of the present article chronicles the past and present efforts of the Berne Union exercised with the aim to bring about a better copyright protection in the world, "better" meaning a protection that extends to the authors of all kinds of works and to all the various (old or new) kinds of uses of their works, consisting. wherever reasonable, of an exclusive right of authorization, efficiently enforced, when infringed, by courts and other law-enforcing instances. Such efforts may be grouped in four groups of activities:

first, the establishment of new treaties; second, the advising of governments on copyright law subjects of topical interest, particularly those resulting from the use of new technologies of recording. copying and disseminating works or their performances; third, the assistance given to developing countries to help them in the achievement of their cultural and economic goals; and fourth, the consultations with non-governmental organizations and intergovernmental organizations.

PART I

THE HISTORY OF THE ADOPTION AND THE REVISIONS

OF THE BERNE CONVENTION

The Adoption of the Berne Convention

The Three Diplomatic Conferences of 1884, 1885 and 1886 (Berne). The Association littéraire internationale, a non-governmental organization, founded in 1878 in Paris, was the original proponent of what then was called une convention universelle (a universal convention) for the protection of literary and artistic property and the foundation of a Union de propriété littéraire (Literary Property Union). In its Congress held in Rome in 1882, the Association decided to meet in Berne in 1883. The Swiss Government accepted to host the 1883 Congress of the Association and delegated to it one of its ministers (conseiller), Numa Droz The said Congress, presided over by Droz, took place in Berne in September 1883. It lasted four days (September 10 to 13) and concluded with the adoption of the draft of a multilateral treaty with the title Convention pour constituer une Union générale pour la protection des droits des auteurs sur leurs œuvres littéraires et artistiques (Convention Establishing a General Union for the Protection of the Rights of Authors in their Literary and Artistic Works). That draft consisted of ten articles.

The Federal Council (roughly equivalent of a council of ministers) of the Swiss Confederation sent the said draft, on December 3, 1883, to the governments of "all the civilized countries" (tous les pays civilisės) and informed them of the plans of a diplomatic conference in 1884 to adopt a

treaty. The treaty should, according to the circular sent to the said countries, lead "on the one hand, to the universal recognition of the rights of authors without regard to their nationality and, on the other hand, to the desirable uniformity of the principles governing such protection.

The initiative was greeted with enthusiasm by the governments of several countries. The Government of the United States of America was one of those which were less enthusiastic. It said, in its reply to the Swiss Goverment, that in the protection of printed works, customs duties would complicate any attempt at international protection since not only the author but also the manufacturer of the paper, the caster of the printing type, the printer, the book binder and many other persons engaged in commerce were interested But the number of favorable replies was sufficient for the Swiss Government to decide the convocation of the first diplomatic conference. Its dates were fixed from September 8 to 19, 1884, and the venue fixed was the room of the Conseil des Etats, the upper house of the Swiss Parliament, in Berne.

The Conference took place as foreseen. The countries represented were Austria-Hungary, Belgium, Costa Rica, France, Germany, Great Britain, Haiti, Italy, the Netherlands, Paraguay, El Salvador, Sweden-Norway and Switzerland. It was presided over by Droz from Switzerland. The Conference agreed on a new draft which the delegates took home as a basis for preparing themselves for the second diplomatic conference.

That Conference took place a year later, again in Berne, from September 7 to 18, 1885. Droz continued as president. The draft texts agreed upon were now three in number: the Convention, an "Additional Article" and a "Final Protocol." But they were still only drafts and served as a basis for the third diplomatic conference.

The third, and last, diplomatic conference in Berne took place from September 6 to 9, 1886. With some amendments, it adopted the said three texts. They were signed on behalf of ten countries: Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia.

The Revisions of the Berne Convention

The Diplomatic Conference of 1896 (Paris). In the original (1886) text of the Berne Convention, it was stated that the first conference of revision would take place "in Paris, within four to six years from the entry into force of the Convention. The French Goverment shall fix its dates within those limits after having consulted the International Bureau" (Final Protocol of 1886, point 6). The Conference was actually convened only in 1896,

that is, nine years after the entry into force of the Convention.

The Conference was prepared by the International Bureau under the leadership of Henri Morel, its Director, and by the French Goverment. It was presided over by Charles de Saulce de Freycinet, member of the French Academy and Senator. It adopted two texts: the Additional Act of Paris (which amended Articles 2, 3, 5, 7, 12 and 20 of the original (1886) text of the Convention and points 1 and 4 of the Final Protocol of 1886) and the Declaration interpreting certain provisions of the Additional Act.

Those texts were signed on behalf of Belgium, France, Germany, Italy, Luxembourg, Monaco, Montenegro, Spain, Switzerland, Tunisia and the United Kingdom of Great Britain and Ireland.

The Diplomatic Conference of 1908 (Berlin). The 1896 (Paris) conference of revision decided that the next conference of revision would take place within six to ten years in Berlin. Once more, the conference of revision was actually convened with a delay, in 1908.

It was prepared by the German Government in cooperation with the International Bureau, then directed by Henri Morel, Director. It was presided over by Dr. von Studt, Prussian Minister of State. Louis Renault, membre de l'Institut and law professor in Paris, was the rapporteur. The Conference lasted a full month and adopted a text in which the previous texts were not only amended but also merged into one text, the 1908 (Berlin) Act.

The revised Convention was signed by the representatives of Belgium, Denmark, France, Germany, Great Britain, Italy, Japan, Liberia, Luxembourg, Monaco, Norway, Spain, Sweden, Switzerland and Tunisia.

Additional Protocol of 1914 (Berne). This Protocol was signed in Berne without a conference of revision. It was proposed by the United Kingdom in order to allow the non-protection of works of United States citizens, even if first published on the territory of a member country of the Berne Union, as a retorsion against the "manufacturing clause" of the United States Copyright Law, a clause which caused great prejudice to English

writers.

The Diplomatic Conference of 1928 (Rome). The 1908 (Berlin) conference of revision decided that the following conference of revision would take place within ten years in Rome. Mainly because of what was then called the "Great War" of 1914-1918, the Conference actually took place 20 years later, in 1928.

The Conference lasted from May 7 to June 2. It was prepared by the International Bureau under the leadership of Fritz Ostertag. Director, and the Italian Government. It was presided over by Vittorio Scialoja, Minister of State. Senator and Law Professor (Italy). Professor Edoardo Piola Caselli (Italy) was the rapporteur général.

The Conference adopted a revised text ("the Rome Act") which was signed by representatives of Australia. Austria, Belgium, Brazil, Canada, Czechoslovakia, Danzig, Denmark, Finland, France, Germany, Great Britain and Northern Ireland, Greece. India, Italy, Japan, Monaco, Morocco, New Zealand. Norway, Poland, Portugal, Romania, Spain, Sweden, Switzerland, Syria and Great Lebanon, Tunisia.

The Diplomatic Conference of 1948 (Brussels). The 1928 (Rome) Conference decided that the next conference of revision would take place in Brussels in 1935. In 1935, the Belgian Government convened the conference of revision for 1936 but postponed it, sine die, a few months later. The history of this postponement prefigures the drama -a great setback for the Berne Union from which it has not so far recovered- which was culminated in 1952 in the adoption of the Universal Copyright Convention. It started with a well-intentioned resolution (veu) of the 1928 (Rome) conference of revision. That resolution (No. VI) reads as follows: "The Conference [of revision of 1928 of the Berne Convention]: considering the identity of the general principles which prevail in, and the objectives towards which are directed, the Berne Convention, revised in Berlin and then in Rome, and the Convention signed by the American States in Buenos Aires in 1910. since then revised in Havana in February 1928, noting the concordance of most of the provisions of the two Conventions, expresses the wish (vau), in conformity with a suggestion made by the Delegation of Brazil and the French Delegation that, on the one hand, the American republics signatories of a convention to which non-American states may not adhere, accede, as did Brazil, to the Berne Convention revised in Rome and that, on the other hand, all interested governments get together (se concertent) to prepare a general agreement (entente générale) based on the similar provisions of the two Conventions and aiming at (ayant pour objet) the worldwide unification (unification mondiaic) of the laws (lois) protecting the creations of the mind (créa tions de l'esprit)" (Actes de la Conférence de Rome, page 350). Although the work on the implementation of this recommendation was interrupted by World War II, the idea was revived, on the initiative of the United States of America, in 1947 at the General Conference of the new (created in

1945) United Nations Educational, Scientific and Cultural Organization (UNESCO). More is said about this in the next part.

The Diplomatic Conference of Brussels took place from June 5 to 26, 1948. It was prepared by the Government of Belgium in cooperation with the International Bureau, then directed by Bénigne Mentha, Director. The Conference was presided over by Julien Kuypers. Secretary General of the Public Education Ministry (Ministère de l'Instruction publique) of Belgium. Marcel Plaisant, membre de l'Institut, Senator and lawyer in Paris was the rapporteur général. Among the delegates were two future Directors General of WIPO: G.H.C. Bodenhausen (Netherlands) and Arpad Bogsch (Hungary).

The Conference adopted a revised Convention which was signed on behalf of Australia, Austria, Belgium, Brazil, Canada, Czechoslovakia, Denmark, Finland, France, Greece, Holy See, Hungary, Iceland, India, Ireland, Italy, Lebanon, Liechtenstein, Luxembourg, Monaco, Morocco, the Netherlands, New Zealand, Norway, Pakistan, Portugal, the South African Union, Spain, Sweden, Switzerland, Syria, Tunisia and the United Kingdom.

The Diplomatic Conference of 1967 (Stockholm). During the 1948 (Brussels) conference of revision, the Delegation of Sweden proposed that the next diplomatic conference of revision be held in Stockholm. This proposal was accepted.

The 1948 (Brussels) conference of revision set up a 12-man committee, called the Comité permanent de l'Union littéraire et artistique (Permanent Committee of the Literary and Artistic Union), primarily for the preparation of the conference of revision of Stockholm. Although the Permanent Committee of the Berne Union (the more familiar name of the said Committee) assumed other tasks as well, its main concerns, until the adoption of the Universal Copyright Convention by a diplomatic conference convened in Geneva by Unesco in 1952, was to prepare the "safeguard clause" for the Berne Convention That clause provided, in essence, that the Universal Copyright Convention would not apply among States party to the Berne Convention. The preparation of the Stockholm Conference occupied the Permanent Committee mainly between 1960 and 1967.

Another intergovernmental committee, called the Working Party on an Administrative Agreement, dealt with the preparation of the administrative reform to be effected at the Stockholm Con ference. It was set up by the Permanent Committee (of the Berne Union) and the Permanent Bureau of the Paris Union. It met three times, each time

in Geneva, that is, in 1964, 1965 and 1966 (see BIRPI documents of the AA/I, AA II and AA/III series).

The Stockholm Conference dealt not only with the revision of the Berne Convention but also with the revision of six other treaties administered by BIRPI and the establishment of the World Intellectual Property Organization. It is for this reason that its official title was "Intellectual Property Conference of Stockholm."

That Conference took place from June 11 to July 14, 1967, in Stockholm. Three of the five main committees of the Stockholm Conference dealt, wholly or in part, with matters concerning the revision of the Berne Convention: Main Committee I with the revision of Articles 1 to 20 (chairman: Eugen Ulmer (Federal Republic of Germany), rapporteur: Svante Bergström (Sweden)); Main Committee II with the establishment of the Protocol Regarding Developing Countries (chairman: Sher Singh (India), rapporteur: Vojtech Strnad (Czechoslovakia)); and Main Committee IV with the administrative provisions and the final clauses (chairman: François Savignon (France), rapporteur: Valerio De Sanctis (Italy)). G.H.C. Bodenhausen, Director of BIRPI, participated very actively in the work of Main Committees I and II. (Main Committee III did not deal with matters concerning the Berne Convention.)

The Stockholm Conference, among other things, revised the Berne Convention. The revised text was signed by representatives of Austria, Belgium, Bulgaria, Cameroon, the Democratic Republic of the Congo, Denmark, Finland, France, Gabon, Germany (Federal Republic of), Greece, the Holy See, Hungary, Iceland, India, Ireland, Israel, Italy, Ivory Coast, Japan, Liechtenstein, Luxembourg, Madagascar, Mexico, Monaco, Morocco, Niger, Norway, the Philippines, Poland, Portugal, Romania, Senegal, South Africa, Spain, Sweden, Switzerland, Tunisia and Yugoslavia.

The Diplomatic Conference of 1971 (Paris). Soon after the closing of the Stockholm Conference, it became clear that the Protocol Regarding Developing Countries, an integral part of the Stockholm Act (1967) of the Berne Convention, would prevent many States from ratifying that Act because the exceptions made in that Protocol to the general rules of the Convention seemed, in the opinion of those States, to go too far.

This opinion was noted by the Permanent Committee of the Berne Union as soon as December 1967. That Committee then started preparing the next and so far last-conference of revision, the Diplomatic Conference held in Paris from July 5 to 24, 1971, at the same time as and in the same place in which the Universal Copyright Conven

tion was revised, too. This was the first revision conference that was convened not by the government of a State member of the Berne Union but by the International Bureau of WIPO, in letters signed by the Director of the International Bureau, G.H.C. Bodenhausen. Pierre Charpentier (France) was the chairman, and Ousmane Goundiam (Senegal) the rapporteur général of the Conference.

The texts adopted by the Conference were identical with those adopted in Stockholm in 1967, except for those concerning developing countries. The new texts were signed on behalf of Austria, Belgium, Brazil, Cameroon, Ceylon, Cyprus, Denmark, Finland, France, Germany (Federal Republic of), the Holy See, Hungary, India, Israel, Italy, Ivory Coast, Japan, Lebanon, Liechtenstein, Luxembourg, Mexico, Monaco, Morocco, the Netherlands, Norway, the People's Republic of the Congo, Romania, Senegal, Spain, Sweden, Switzerland, Tunisia, the United Kingdom, Uruguay and Yugoslavia.

Unfinished Attempts to Enlarge the Membership of the Berne Union. The absence of the United States of America from the Berne Union has, from the very beginning, been considered as regrettable. The gap probably could have been filled had the 1948 (Brussels) conference of revision, instead of passively noting the emergence of the Universal Copyright Convention within the framework of Unesco, offered to the United States of America, and other States outside the Berne Union, to explore, together with the members of the Berne Union, an accommodation within the framework of that Union. With the hindsight one has today, it is evident that the concessions that the United States of America wanted-particularly, a shorter minimum duration of protection and a less rigid prohibition of formalities and which were opposed by the leading countries of the Berne Union, were, by the very same countries, fully conceded within the framework of Unesco's Universal Copyright Convention.

As soon as the duality of the Conventions was consummated, that is, with the advent of the Universal Copyright Convention, two multilateral treaties, open to all countries and each with the ambition to be accepted by the maximum number, some people started to dream of an eventual merging of the two Conventions or, at least, of the entry of the United States of America in the Berne Convention.

The United States of America fundamentally revised its copyright legislation in 1976 in a way which considerably reduced its incompatibility with the Berne Convention. WIPO took the initiative then to propose the establishment, by a diplomatic conference of the Berne Union, of a protocol

to the Berne Convention that would have allowed the United States of America to continue to apply. for a limited period of time. the same provisions on formalities that it is already allowed to apply under the Universal Copyright Convention. (The incompatibility as to the term of protection has disappeared thanks to the new Copyright Law of the United States of America.) The matter was discussed in a Group of Consultants convened by WIPO in 1978 (1979 Copyright 95). Although the Group endorsed the idea. the idea was, a couple of years later, abandoned, at least provisionally. in the light of declarations by the United States of America that there were real chances to modify further its copyright legislation to make it wholly compatible with the Berne Convention. This is why the diplomatic conference that should have adopted the said protocol has not been convened.

Eight years later, that is, in 1986, the year of the centenary of the Berne Convention, the United States of America was still not a party to the Berne Convention, but there were signs that the situation might change. Both the executive and the legis lative branches of the United States of America. as well as the interested private circles, were actively engaged in studying what amendments would be necessary in the national legislation of that country to make it fully compatible with the Berne Convention. Those studies were clearly inspired by the desire to become a member of the Berne Union.

For the continued strength and further development of the Berne Union, United States membership would be of great significance. let alone the increased international protection which United States nationals would enjoy abroad. One has, therefore, to formulate the wish, on the occasion of the centenary, that accession by the United States of America to the Berne Convention become a reality early in the second century of that Convention. The wish holds, naturally, not only for the United States of America but also for all other countries, and among them particularly China and the Soviet Union, that, at the end of the first hundred years of its existence, were not members of the Berne Union.

PART II

THE HISTORY OF THE EVOLUTION
OF THE MEMBERSHIP
OF THE BERNE UNION

Ratifications and Accessions

Ratifications of and Accessions to the Original (1886) Text. The following countries ratified or

acceded to the original (1886) text of the Berne Convention: Belgium, Denmark. France, Germany, Great Britain, Haiti, Italy. Japan, Liberia, Luxembourg, Monaco, Montenegro, Norway. Spain. Sweden, Switzerland. Tunisia (17) The ratification by Great Britain extended also to Aus tralia, Canada, India, New Zealand and South Africa

Ratifications of and Accessions to the Later Texts. The following countries ratified or acceded to the texts (Acts or Protocols of the Berne Convention) adopted between 1886 and 1971

Additional Paris Act (1896) Belgium, Denmark, France, Germany, Great Britain, Haiti, Italy, Japan. Liberia, Luxembourg, Monaco, Montenegro, Norway. Spain, Sweden, Switzerland. Tunisia (17). The ratification by Great Britain extended also to Australia, Canada, India, New Zealand and South Africa.

Berlin Act (1908): Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Czechoslovakia, Danzig (Free City of), Denmark, Estonia, Finland, France, Germany, Greece, Haiti, Hungary, India. Ireland. Italy. Japan. Lebanon. Liberia. Liechtenstein, Luxembourg. Monaco, Morocco, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, South African Union, Spain, Sweden, Switzerland, Syria, Thailand. Tunisia. Turkey, United Kingdom. Yugoslavia (42).

Additional Berne Protocol (1914): Australia, Austria. Belgium. Brazil. Bulgaria, Canada. Czechoslovakia, Danzig (Free City of). Denmark, Estonia, Finland, France, Germany. Greece. Hungary, Italy, Japan, Lebanon, Liberia, Luxembourg. Monaco, Morocco, Netherlands. New Zealand. Norway, Poland. Romania, South Afncan Union. Spain, Sweden, Switzerland. Syria. Thailand, Tunisia, Turkey, United Kingdom, Yugoslavia (37).

Rome Act (1928): Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Czechoslovakia, Danzig (Free City of), Denmark, Finland, France, Germany, Greece, Holy See, Hungary, Iceland, India, Ireland, Israel, Italy, Japan. Latvia, Liechtenstein, Luxembourg, Monaco, Morocco, Netherlands. New Zealand, Norway, Poland. Portugal, Romania. South African Union. Spain, Sweden, Switzerland, Syria, Tunisia, United Kingdom. Yugoslavia

(40)

Brussels Act 1948 Argentina. Austraha. Aus tria, Bahamas, Belgium, Benin,* Brazil, Cameroon, Chad, Chile, Congo, Denmark, Fiji, Finland. France. Gabon. Germany (Federal Republic of). Greece. Holy See. India, Ireland.

By declaration of continued adherence