What You Didn't Know About the Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works is an international treaty that imposes certain regulations and statutes that are accepted by its collective members, or signatories. The Berne Convention was created to institute a cohesive amalgamation of international copyright law for the purpose of convenience and ease of interpretation between countries.

Before the Berne Convention, countries had their own copyright processes and laws that would make the recognition of other countries’ copyright laws a confusing matter. The institution of an international copyright law allows for the proper interpretation of general copyright laws and legislation between countries so aspects such as copyright infringement can be properly assessed and regulated.

The Berne Convention, as the international agreement is commonly referred, derives its name from the city in which it was first accepted as an international copyright law, Berne, Switzerland, in 1886. The Berne Convention was first developed by a member of the Association Litteraire et Artistique Internationale, Victor Hugo.

One the most notable inclusions of provisions in the Berne Convention is the fact that under its legislation, creative works and their copyrights are inferred upon their creation and no proper registration or application for copyright is necessary. Copyrights are inherited naturally upon a creative works production.

Once a work is termed as "fixed," or written and/or recorded in some physical form, the author of such work is granted copyrights to that particular work, and any other creative works stemming from the original. The copyright remains in the author's possession until the copyright term expires, or the author explicitly gives up his/her right to copyright ownership.

Thus, under this provision, nations under the Berne Convention must recognize the copyrights of authors and their works from foreign countries and consider them under domestic copyright law statutes as having the same privileges and rights.

The Berne Convention became an international copyright law that was influenced by the French concept of "right of the author," as opposed to the United Kingdom's concept of copyright, which was solely based on economic and monetary concerns. The inherent development of the Berne Convention and its philosophy and structure are evidence that there were different notions regarding copyrights that varied from nation to nation, thus making the development of cohesive standards for international copyright law deemed to be necessary.

Before the Berne Convention, any particular published work could be created and be protected under its own nation's copyright laws, but in another, the work could be copied and distributed freely. Nations were not forced or required to observe foreign copyright laws and would often refuse to adhere to them because they did not apply under their own national copyright laws and standards. The Berne Convention would allow for the integration of copyright laws so that all nations’ authors and their creative works or materials' copyrights could be protected under one international copyright law, regardless if the respective nations had their own particular system or process for copyright.

The Berne Convention was also influenced by the Paris Convention, allowing for the integration of recognition of other types intellectual property, as well as setting up a bureau to handle the administrative responsibilities of the new statutes. By 1893, the Berne Convention instituted the United International Bureaux for the Protection of Intellectual Property, situated in Geneva.

The main purpose of this Bureau, also known as BIRPI, was to simply apply and enforce the provisions of the Berne Convention. BIRPI would eventually move its headquarters to Geneva in 1960, which was also home to the United Nations. BIRPI would become the predecessor to the World Intellectual Property Organization, or WIPO, which was created in 1967.

As per the structure and provisions granted in the Berne Convention, the United States did become a member or signatory on March 1st, 1989, when the United States would pass the Berne Convention Implementation Act of 1988. The reason that the U.S. refused to join the Berne Convention previously was because copyright laws and the required registration and mandatory notice of copyright were implemented into U.S. legislation. Joining the convention would incur major revisions and changes to copyright law.

The inclusion of moral rights was also an issue that prompted the refusal to join. However, the United States would eventually realize the need for a governing international copyright law, and even though it did have to amend and revise some legal statutes, the U.S. still has its original system of copyright registration and overall statutes. Currently, the Berne Convention is upheld by 164 countries around the world.