BERNE CONVENTION IN IPR

1. INTRODUCTION
The past few decades have witnessed growing awareness about the need to protect the Intellectual
Property Rights (IPR) of authors and inventors in their works. The Berne Convention for the Protection of
Literary and Artistic Works aims to protect the rights of the authors of literary and artistic works and was
adopted in 1886.

2. COPYRIGHT AND BERNE CONVENTION

The core of the Berne Convention deals with copyright. The Berne Convention envisages setting up a
uniform international copyright regime for the protection of authors. At the time of the signing of the
Berne Convention, different nations had different laws relating to copyright. Many nations did not
provide adequate copyright protection to the authors.

3. HISTORICAL BACKGROUND OF BERNE

Paris Convention for the Protection of Industrial Property (PCPIP)
 Enacted in 1883, it was the first major international convention for protecting intellectual
property rights.
 Covered patents, industrial designs, service marks, and geographical indications.
 Provided uniform minimum standards for trademark protection among signatory
countries.
Victor Hugo and the Berne Convention:
 Victor Hugo, President of the Association littéraire et artistique internationale, advocated
for international agreements to protect authors' rights.
 He campaigned for the creation of what would become the Berne Convention.
Pre-Berne Convention Copyright Laws:
 Before the Berne Convention, there was no coordination among countries' copyright
laws.
 Works registered under copyright in one country had protection only within that country.
Initial Berne Convention:
 Signed in 1886 by 10 countries, including Spain, France, the UK, and Switzerland.
 Adopted in Berne, Switzerland, hence the name.
 The United States attended the conference but chose not to join the Convention.
Impact:
 The Berne Convention now has over 180 member countries.
 The Berne Convention significantly influenced copyright laws worldwide.
 It provided a framework for international cooperation in protecting authors' rights.

4. BASIC PRINCIPLES OF BERNE CONVENTION IN IPR

The Berne Convention is based on four basic principles:
 National treatment: The Berne Convention provides that works originating in any one of the
member countries should be afforded the same protection in other member countries as are
afforded by the countries to their own nationals.
 Automatic protection: Under this principle, the works are conferred with national treatment
without any formality or registration. The protection is conferred by the very creation of the work
and is not subjected to any formality.
 Independence of protection: According to this principle, the protection afforded to a foreign
author in a member country is independent of the degree of protection in the country of origin.
 Minimum standard of protection: Under this principle, each member state is required to grant a
minimum level of protection, as stipulated under the Convention, to the works of foreign authors.

5. OVERVIEW OF BERNE CONVENTION

a. Literary and artistic works vis-a-vis Berne Convention

Article 2 of the Convention describes ‘literary and artistic works’. It includes all the works in the literary,
artistic, and scientific domains, irrespective of the form of the work. Choreographic works,
cinematographic works, and musical works also fall within the domain of ‘literary and artistic works’.
Article 2(2) empowers the member nations to enact domestic legislation to classify certain works that
would not be protected unless they are reduced to some ‘material form’. Formal registration as well as
reductions in writing can qualify to fall under the expression ‘material form’. The object behind this
requirement is to have evidence of the existence of the work.

b. Authors protected by Berne Convention in IPR

Article 1 of the Berne Convention establishes a "Union" of countries to which the Convention applies. It
provides protection to authors who are nationals of Union countries, as well as to authors whose works
are published in Union countries. Protection also extends to cinematographic works made by residents of
Union countries and architectural works located within Union countries. For literary and artistic works,
the person whose name appears on the work is presumed to be the author, and for cinematographic works,
the person or corporation whose name appears is presumed to be the maker, unless proven otherwise.

c. Rights of the authors under Berne Convention

Article 5 provides that the authors of works protected by the Convention shall enjoy all such rights in the
countries of the Union that the laws made by the respective countries confer on their nationals. Thus, the
authors enjoy copyright protection in all the Union countries as per the laws applicable to the respective
nations. The protection shall not be subjected to any formality.
Article 8 provides that the authors have the right to make translations of the works. They may even
authorise someone else to make translations or reproductions of their works.
In the case of dramatic and musical works, the authors have the right to authorise the performance of their
works in public. They may also authorise the broadcasting of their work to the public and
cinematographic adaptations of their works.

d. Moral rights
Apart from the economic rights to exploit the work, the Convention also recognises the moral rights of
the authors. The authors would be entitled, even after the transfer of their economic rights, to claim
authorship over their work and to be protected from any distortion, modification, or mutilation of their
work that may be prejudicial to their interests.

The Berne Convention was referred to by the Delhi High Court in the case of Amarnath Sehgal v. Union
of India (2005). In this case, the plaintiff had sold a mural to the Government of India for display at the
Vigyan Bhawan. The government subsequently took down the mural from the Vigyan Bhawan and
dumped it in a store. The mural had also been damaged due to the maltreatment by the government. The
plaintiff pleaded that the ill-treatment of the mural was a violation of his moral rights. The Court referred
to Article 6bis of the Berne Convention, which casts an obligation on the signatory countries to respect
the moral rights of the copyright holders. The Court thus ruled that the petitioner was entitled to receive
back the mural with some damages.

e. Term of protection under Berne Convention

The protection granted to the authors under this Convention shall extend up to 50 years after the death of
the author. In the case of works of joint authorship, the 50 year period shall be computed from the date of
the death of the last author.
In the case of anonymous and pseudonymous works, the protection period is limited to 50 years after the
public becomes aware of the work.
However, in the case of cinematographic works, the signatory countries can limit the protection period to
50 years after the work has been made publicly available. Similarly, in case of photographic works, the
term of protection can be restricted to a minimum of 25 years.
The countries are free to grant protection for a term exceeding the period stipulated by the Convention.

f. Free use in certain cases under Berne Convention

Article 10 enumerates the conditions under which the free use of the copyrighted works would be
permissible. It states that where the copyrighted work has been made publicly available, it shall be lawful
to make quotations from the work, provided that such quotations are in accordance with the fair practices
of the trade. It is necessary to mention the source and the author of the work while making use of the
copyrighted works.

g. Assembly and its composition

Article 22 stipulates the establishment of a convention in which the governments of the Union countries
will be represented by their respective delegates. The Assembly would take steps for effective
enforcement of the Convention. It would appoint an Executive Committee and review the report and
recommendations of the Executive Committee.
The Assembly would also adopt the biennial budget of the Union and draft other financial regulations of
the Union. The Assembly has to meet at least once every two years and has the freedom to decide its own
procedure.

h. Executive Committee
The Assembly would select the countries that would be the members of the Executive Committee. While
electing the members of the Executive Committee, the Assembly gives due consideration to ensuring
equitable geographic representation.
The Executive Committee is responsible for preparing the agenda for the Assembly and submitting yearly
audits to the Assembly.

i. United International Bureau

Like the PCPIP, the Berne Convention also provided for the setting up of an international bureau to
ensure the effective enforcement of the Convention. Article 24 deals with the constitution and functions
of the Bureau. The Bureau is responsible for collecting and publishing information relating to copyright
protection.

j. Special Agreements
By virtue of Article 20, the countries of the Union are free to enter into special agreements among
themselves with the objective of granting copyright holders more extensive rights than those granted by
the Convention.

k. Finances
The budget of the Union is derived from the
 contributions made by the different countries,
 the fees charged by the Bureau for providing services and assistance to the Union countries
 Rents, gifts, and interests
 Royalty on the publications of the Bureau

l. Denunciation of Berne Convention in IPR

The Convention is to remain in force indefinitely. Member countries may denunciate the Convention by
submitting a written address to this effect to the Director General. The denunciation would become
effective after the expiry of 1 year from the date of communication of the written address to the Director
General. It is pertinent to note that a country cannot denunciate the Convention within a period of 5 years
from the date of joining the Union.

m. Dispute settlement under Berne Convention

Article 33 provides the mechanism for the resolution of a dispute arising between Union countries in
relation to the interpretation of the Convention. Any such dispute has to be primarily resolved through
negotiation. If the dispute cannot be resolved through negotiation, then either of the disputing countries
can approach the International Court of Justice. However, the disputing countries may also agree on any
other mode of dispute settlement.
The country which invokes the jurisdiction of the International Court of Justice (ICJ) has to communicate
its decision to the International Bureau. The International Bureau, in turn, informs all the other countries
of the Union about the matter brought before the ICJ.

n. Administration
The Berne Convention is administered by the World Intellectual Property Organization (WIPO). The
administrative functions performed by WIPO include collecting and publishing information relating to the
protection of copyright. Each member state is required to communicate all new copyright laws to
WIPO. WIPO also participates in all the meetings of the Assembly and makes preparations for the
conferences held for revision of the Convention.

6. INDIA AND THE BERNE CONVENTION

It is pertinent to note that India has been a member of the Berne Convention since 1887. By virtue
of Article 31, when Britain became a signatory to the Berne Convention, it signed the Convention on
behalf of all its colonies.
Thus, India became a member of the Convention in 1887, by virtue of the application made by the United
Kingdom on September 5, 1877.
India initially demanded a reduction in the minimum term of copyright protection. However, by the 1992
Amendment to the Copyright Act, 1957 the term of copyright protection in India was enhanced from
lifetime plus 50 years to lifetime plus 60 years. This change was inspired by the upcoming expiry of
copyright over the works of Rabindranath Tagore. By the Amendment, the copyright protection over the
works of Rabindranath Tagore could be extended by a period of 10 years.
The Copyright Act, 1957 is also based on the Berne Convention. It incorporates economic as well as
moral rights. In compliance with the Berne Convention, it does not impose any unreasonable formalities
on the foreign authors. The Indian copyright regime also makes certain exemptions to permit the use of
protected works without the permission of the author. Such use is permitted for research, criticism,
reporting of current events and educational purposes.

7. CONCLUSION
The aim of the Berne Convention is to lay down an effective and uniform mechanism for the protection of
the rights of the authors of literary and artistic works.
The Berne Convention was intended to be routinely revised in order to make it fit to meet the challenges
and needs of the contemporary times. However, no major change has been made to the Convention since
1971. Thus, the Convention does not adequately meet the concerns of the copyright holders, particularly
in view of the rapid development of digital publications.