Berne Convention
| Berne Convention for the Protection of Literary and Artistic Works | |
|---|---|
 Map of parties to the Convention | |
| Signed | 9 September 1886 |
| Location | Bern, Switzerland |
| Effective | 5 December 1887 |
| Condition | 3 months after exchange of ratifications |
| Parties | 182 |
| Depositary | Director General of the World Intellectual Property Organization |
| Languages | French (prevailing in case of differences in interpretation) and English, officially translated in Arabic, German, Italian, Portuguese and Spanish |
| Full text | |
 Convention for the Protection of Literary and Artistic Works at Wikisource | |
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 city of Bern by ten European countries with the goal of agreeing on a set of legal principles for the protection of original work and intellectual property. They drafted and adopted a multi-party contract containing agreements for a uniform, border-crossing system that became known under the same name. Its rules have been updated many times since then.[1][2] The treaty provides authors, musicians, poets, painters, and other creators with the means to control how their works are used, by whom, and on what terms.[3] In some jurisdictions these types of rights are referred to as copyright; on the European continent they are generally referred to as authors' rights.
As of November 2022, the Berne Convention has been ratified by 182 states out of 195 countries in the world, most of which are also parties to the Paris Act of 1971.[4][5]
The Berne Convention introduced the concept that protection exists the moment a work is "fixed", that is, written or recorded on some physical medium, and its author is automatically entitled to all copyrights in the work and to any derivative works, unless and until the author explicitly disclaims them or until the copyright expires. A creator need not register 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
[edit]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 authors' rights law 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.[citation needed]
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.[citation needed]
Author's rights 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,[6] it continued to make statutory damages and attorney's fees 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.[7]
Applicability
[edit]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")[8] in a country that is party to the convention.[8] 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.[9]
Country of origin
[edit]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")[8] in several party countries,[8] the country with the shortest term of protection is defined as the country of origin.[10]
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.)[10]
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 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 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).