India’s Bittersweet Relationship with

Berne Convention
Introduction

To properly comprehend the essence of copyright, readers must first understand the term from
various perspectives. However, to fully grasp copyright, we will first examine it through a legal lens.
According to Black's Law Dictionary, "Copyright is the right of literary property as recognized and
sanctioned by positive law. It is an intangible, incorporeal right granted by statute to the author or
originator of certain literary or artistic productions, whereby the creator is invested, for a specific
period, with the sole and exclusive privilege of multiplying copies of the work and publishing and
selling them."[1] This definition emphasizes copyright as a property right, which was foundational in
establishing copyright to categorize it as a form of property.

To solidify copyright's classification as a personal property right, we can examine the 1886 Berne
Convention's definition. At the time, copyright was limited to artistic and literary works including
books, pamphlets, dramatic or dramatic-musical works, architecture, paintings, topography, or any
production in the literary, scientific or artistic domain that could be published. However, publishing
rights were protected under Articles 2 and 3.[2] The Berne Convention cemented copyright as a
property right belonging to creators, laying the groundwork for modern copyright law. When viewed
through a legal lens, copyright establishes specific protections for authors and originators to control
reproduction and distribution of their literary and artistic works for a designated period.

Protection of copyright is one of the most important aspects of national and international affairs and
law. Many nations find themselves in dispute regarding various provisions and aspects of copyright
protection. These disputes are solved by the countries by taking the reference of various
international and national laws, treaties, and conventions. Earlier, there was no protection for
literary and artistic works of the author and these works could be easily reproduced by people of
different countries thereby denying recognition and due monetary credit to the original author of
the work. Though the developing and under-developed countries found it necessary to reproduce
the works of authors from different nations to provide a boost to literary education and the nation,
the authors from developed countries found it unfair to share their 'intellectual property' without
any monetary credit.
Thus, to protect the work of various authors and artists internationally many such treaties and
conventions were signed by different countries. Among these, the Berne convention of 1886 remains
the oldest. The Berne Convention was initially signed by ten countries namely United Kingdom (this
was also extended to its colonies like India, Australia, Canada, South Africa, and New Zealand),
Belgium, France, Germany, Italy, Spain, Tunisia, Haiti, Liberia, and Switzerland who wanted the
protection of the works of their authors and artists. The convention later expanded to include 181
nations out of total 195 nations in the world. This suggests that except for a handful of countries
which include Taiwan, and Ethiopia among others, all other countries have signed and ratified the
Berne Convention as of now. This article aims to understand the Berne convention and aims to
present it from an Indian perspective which includes a perspective from both post and pre-colonial
India.

The History of the Berne Convention

The Berne convention, also known as Bern Convention and formally known as International
Convention for the Protection of Literary and Artistic Works, international copyright agreement by an
international conference in the Switzerland on 9th September 1886 [which subsequently was
changed and amended in 1896 (Paris), 1908 (Berlin), 1914 (Berne), 1928 (Rome), 1948 (Brussels),
1967 (Stockholm), 1971 (Paris) and finally in 1979 which led to formation of Berne Union] and was
ratified in 5th September 1887. All the Signatories were bound to the convention and formed the
Berne Copyright Union.[3]

The Convention was initiated and fuelled by the one of the greatest writers of all time Victor Hugo
which also later became the president and main proponent of the convention and supported the
copyright and consider the protection of literary works very important. This idea of convention was
based from the French ideal of droit d’auteur (right of the author), which gives the right to own a
literary or artistic work wholly to the author. This contrasted with the Anglo-Saxon concept of
copyright; which only dealt with economic factors.[4]

Before the convention there was regulation laid down oh how the copyright of literary works should
be governed, so for an example a publisher in France who has the copyright of an artistic or literary
works could print and sold the work in France and covered under copyright but it could be copied by
anyone in anywhere in the world and be sold anywhere in world except France.

Berne convention followed the stones set by earlier Paris Convention for the protection of Industrial
property of 1883 which protected other type of intellectual property like trademark, patent, etc.
later in 1893 Berne Convention set up its administrative HQ in Berne called United International
Bureaux for the Protection of Intellectual Property which was later shifted to Geneva in 1960 and
finally in 1967 it was renamed and reconstituted as World Intellectual Property Organization (WIPO).
The need for forming a new Organization under United Nation in 1974 was to address the issues
which came through the rise of Information Technology and Internet, which was not addressed by
the former Convention.[5]

Significant provisions of the Berne Convention

The Berne Convention intended to provide copyright protection to authors and artists of all the
member countries. As per the convention if a literary work is produced in a member nation it shall
enjoy copyright protection in all the countries who have ratified the convention and this protection
would be applicable even after 50 years of the death of the author. This timespan can be increased
as per the laws of the country.1

Though the Berne Convention does not apply to photography and cinematography works, it protects
databases over the internet. Many provisions and amendments have been made to the convention
to suit the modern copyright regime and modern intellectual property.

Also, after the 1971 demand from various developing countries, the convention was amended to
provide the clause for compulsory licensing for literary and artistic projects. Also, provisions were
made to provide the work for fair use such as education to the member countries. In such situations,
licenses were not required and royalties need not be paid.

Impact on India

When India signed the Berne Convention it was in a nascent stage of development. Industries had
not flourished and literacy rates were strikingly low. In such a situation it was not affordable for a
country like India to provide copyright protection to other nations as doing so would hamper the
development in some way and may prove to be an impediment to access to free and affordable
education.

Providing copyright would mean paying royalty to the author every time his work is used. But the US
handled the situation more smartly. As the US too was a developing country, it did not sign the
convention and allowed the piracy of works in the country. It was able to use the works of different

1
‘Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886)’ (World
Intellectual Property Organisation) <https://www.wipo.int/treaties/en/ip/berne/summary_berne.html/>
accessed 28th May 2023
authors from different countries without a license and also it would not be liable for 'copyright
infringement'. This led to the large-scale development of industries and diffusion of knowledge
which made the US a major industrial power in the 20th Century. It is only after it was a major
industrial power that the US signed various copyright and intellectual property agreements.

But India did not have this luxury. Thus, it was left much behind in the development of literary base
and industrial knowledge. India went on to sign subsequent amendments to the Berne Convention
and thus went on to protect foreign authors at the cost of knowledge and scientific development.

After independence, all the framed copyright laws were in correspondence to the Berne convention.
The Joint parliamentary committee on the review of the Copyright Bill, 1956 had suggested that the
protection of work after the death of the author be reduced to 25 years instead of 50 years. But this
demand was not accepted and the Copyright Act, 1957 was made in accordance with Berne
Convention.

Finally, in the year 1967 India stood for itself. India along with other developing countries opposed
the Stockholm Act of 1967 and paved the way for the adoption of the Paris Act, of 1971 whose
appendix had a provision for compulsory licensing. This compulsory licensing would help in using
literary works without copyright infringement and payment of royalties.

But the Government of the day did not bother to make changes in the domestic laws until the year
1984. Even after the changes, this compulsory licensing provision was never used and lapsed in the
90s.

Of all the ills the Berne convention had for India, there were some positives too. Due to the
provisions for the fair use of literary works, foreign works could be used in India for educational and
knowledge purposes. This could only be done if the purpose was not any commercial activity. This
was demonstrated in the famous Rameshwari Photocopy case of Delhi University where the
Supreme Court held that it was fair on the part of Rameshwari Photocopy shop to photocopy certain
sections of books for education and dissemination of knowledge.

Conclusion

Henceforth to concur that Berne Convention was a treaty which India did not need as country at that
point of time at which it was imposed upon her by the United Kingdom as they were the colonizers
of almost all the countries which did not sign the treaty as a direct party like Australia, Canada, South
Africa, etc. and these all countries with India got trapped into it. [oops! article] By this treaty India
and all non-direct party to it was put into in an situation of encumbrance