between foreign and national authors; that the imposition of formalities for the "recognition and protection" of copyright in foreign works be curbed; and, "that all countries adopt uniform legislation for the protection of literary and artistic works." (Emphasis added).6/ The 1886 Convention contains two basic principles that are still a basic part of the Berne Convention: 1. The Union Concept. The contracting states constituted themselves into a Union for the protection of the rights of authors in their literary and artistic works. In forming this Union, the original members of the Berne Convention "sought to underline that it was not a matter of merely negotiating a contractual agreement between a number of countries, the duration of which depended on the continuing participation of all the signatories, but one of creating a genuine 'society' of states, able to go on existing even after the departure of one or more of them, open to all countries of the world and capable by periodic revision, of keeping pace with juridical, technical and economic change."7/ 2. Principle of National Treatment. One of the major advances made in the 1886 Convention was the adoption of the idea that authors who are subjects or citizens of any of the countries of the Union should enjoy in all other member countries the same protection for their works as those countries accord their own authors. This is the principle of "national treatment," also referred to as "assimilation of the foreigner to the national." 6. Ladas at 72. 7. World Intellectual Property Organization, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) 9 (1978) (hereafter "Wipo Guide"). - 5 B. Successive Revisions of the Berne Convention. Although primitive by today's standards, the 1886 Berne Convention included provisions such as the "union of states" and national treatment which remain cornerstones of the Convention today. During the one hundred years of its existence, the Convention has been revised five times in order to meet changing conditions, such as new technological developments, that may affect authors' rights. At least through the 1948 Brussels revision, the successive texts have generally improved and extended the rights accorded authors and copyright proprietors. 1. 1908 Berlin Act.8/ The principal achievement of the Berlin Revision Conference was the prohibition of formalities as a condition of the enjoyment and exercise of rights under the Convention. The term of copyright protection was set for the life of the author plus fifty years, subject to different regulation by the law of each country. The Convention also extended the range of various kinds of literary and artistic works to be protected and clarified that all contracting countries were bound to afford protection by their law to all of these works. The Berlin Revision recognized the exclusive rights of authors of musical works to authorize the adaptation of these works and gave protection to the authors of cinematographic works. Translation rights were recognized for the life of the copyright without restriction. Photographic works were explicitly included. 2. 1928 Rome Act. This revision expressly recognized the moral rights of authors, giving them both the right to claim authorship, and the right to object to modifications of the work that prejudiced their honor and 8. The Berlin Conference of 1908 worked the first major revision of the Berne Convention, but the first changes were made by an 1896 Paris Conference. This "Additional Act of Paris" made perfecting amendments regarding interpretation of the Berne Convention and firmly recognized the right of translation for a minimum term of ten years. reputation. States are free to determine conditions of the exercise and safeguard of these moral rights. This revision also specifically recognized the right to authorize broadcasting of a work, but details of the right were left to national legislation. 3. 1948 Brussels Act. This revision made mandatory the fifty year after the death of the author copyright term of protection as a minimum term of protection. It also added general improvements in copyright protection including: a special right of recitation; optional droit de suite.9/ subject to reciprocity; and protection against communication by cable of the broadcast of the work if that broadcast is made by a body other than the original one. It recognized cinematographic works as a sui generis category, to which works produced by analogous processes were added. 4. 1967 Stockholm Act. The Stockholm Act created the World Intellectual Property Organization (WIPO) to administer the Union. It extended protection through assimilation of authors not nationals of a Union country but having their habitual residence in one of those countries to nationals of such a country and also established a "Protocol Regarding Developing Countries," which would have allowed developing countries broadly to limit the rights of translation and reproduction. This Act10/ also gave 9. This right to an interest in resales of works of art and manuscripts is entirely optional for member states and is available only on the basis of reciprocity. Article 14ter. 10. Because of its controversial Protocol, developed countries generally refused to accept the substantive provisions of the Stockholm Act, and the Act is significant primarily for the creation of WIPO, which replaced the International Bureau of the Berne Union (BIRPI) as the administrative organization (secretariat). The substantive provisions later came into force as part of the successful 1971 Paris Revision. The Protocol Regarding Developing Countries was modified to narrow the possible exceptions to exclusive rights. Since it is the provisions of the 1971 Paris Act that the United States must accept, this text is discussed separately in the next section of our statement. -7 explicit recognition to and provided special regulation of the right to authorize the reproduction of a work and provided other special rules for cinematographic works.11/ C. Divergence of Berne and U.S. Copyright Law. The Berlin revision largely coincided with the development and enactment of the 1909 United States Copyright Act. Although Congress, the Administration and many interests groups were aware of the Berne revision proceedings, the Copyright Act of March 4, 1909, which was to be the basic copyright law of the United States for almost 70 years, pursued policy lines at odds with major provisions of the Berlin text. The decisions made in Washington in 1909 and in Berlin in 1908 were to set the United States and the Berne Union upon separate paths, originally based upon a differing approach to copyright duration and formalities. With the revision of Berne at Rome (1928) and Brussels (1948), and the failure of several United States revision efforts aimed at permitting United States adherence to Berne, the paths would not even begin to converge in material ways until the enactment of the 1976 Copyright Act. D. Relationship of the Berne and Universal Copyright Conventions. Under the auspices of UNESCO, and with United States interests as the primary motivating force, a second international copyright convention, the Universal Copyright Convention (UCC) was formed in the post-World War II 11. We have given a brief summary of the successive revision texts of the Berne Convention not only for their historical significance, but also because of their practical importance. Different members of the Convention adhere to different texts, and their relations are governed primarily by the latest common text, if any. (Sometimes there is no common text, and each applies the version to which it has adhered.) Thus, Thailand is a member of the 1908 Berlin version. Canada and several other countries adhere to the 1928 Rome version. 8 era. 12/ This Convention was agreed upon in Geneva in 1952, and the United States ratified the Geneva text and became a member of the UCC in 1955. It was revised once, at Paris in 1971, simultaneously with the Berne revision. The UCC has 79 adherents and provides significant protection for United States works abroad on the basis of national treatment and a few specific minimum requirements. Our membership in the UCC would be maintained even if the United States were to join the Berne Union. The UCC was created with the full assistance of the founding members of the Berne Union. One of the signal, and crucial, achievements in that is, avoid any The agreement is developing the UCC was the agreement to "safeguard" found in Article XVII of the UCC and its Appendix Declaration. Article XVII of the UCC provides that the Universal Convention does not change any provisions of the Berne Union or membership in the Berne Union. This article together with its Appendix Declaration is known as the "Berne safeguard clause." Paragraph (a) of the Appendix Declaration provides a penalty against any country, a member of Berne on or after January 1, 1951, 12. The United States directed its energies to the major task of creating a new, worldwide multilateral copyright convention because it reached the conclusion that, at least temporarily, Berne Convention membership was no longer a realistic goal. As stated in the 1954 Senate Report dealing with adherence to the Universal Copyright Convention: [The United States] has found it impossible to subscribe to the Universal Copyright Convention, Report of the Senate Comm. on Foreign Relations on Executive M, S. Exec. Rep. No. 5, 83d Cong., 2d Sess. 3 (1954). |