This article is written by Gaurav Prakash.
There are some basic features of our constitution which cannot be altered or modified by any law. The basic structure has shaped our Constitution. Our nature is also made up of 5 basic elements namely Earth, Water, Fire, Air, and Space. Without them, we cannot expect our existence on this planet. In the same way, Intellectual Property Rights was shaped by certain international conventions. These international conventions played a very important role in upholding the protection of artistic work, literary work, industrial works and invention. They say that necessity is the mother of every invention. There were some incidents that happened in the world which led to the eruption of a strong desire to overcome such difficulties forever.
After the Industrial revolution of Britain, which began in the 1780s, which ultimately led to growth in both steam power and iron production. There was a demand for new inventions and discoveries which can make their work easier. This was the age of change. The whole migration of human beings from agriculture fields to big and small factories and workshops lead to a huge rat race and those races were of inventions. With the advancement in science and technology and the lust of becoming a superpower in the world, both the USA and Great Britain were involved in creating, innovating, discovery and inventions of Industrial tools and machines. With inventions came patents and with patents, came want of protection for industrial property rights all over the world. The zenith of this need was quite evident in the year 1873 when the Government of Austria-Hungary invited other countries to participate in an International Exhibitions for Inventions at Vienna.
This exhibition was a total failure as many foreign visitors were not very keen on participating in this exhibition and exhibiting their inventions, the reason being inadequate legal protection offered to them. There was a sense of insecurity among the participants. This led to the passing of the Austrian protection law which gave temporary protection to every invention, Industrial designs and patents which was to be displayed in this exhibition. Secondly, in the same year, Vienna Patent reform was convened.
This incident drew the attention of the world and led to the establishment of the following conventions:
Bern is the capital of Switzerland. This convention was held in Switzerland, in the year 1887. Berne Convention is considered to be the very first international treaty in the field of Copyrights. It got revised in 1896 (Paris), then in 1908 (Berlin),1914 (Berne), 1928 (Rome), 1948 (Brussels), then in 1967 and finally in 1971 (Paris). Berne Convention has 38 articles which are broadly divided into two categories:
- Article 1-21: They deal with rights, duties, and obligations of member states.
- Article 22-38: They deal with administrative and final clauses of this convention.
The major objective of this convention was to give a uniformity to the rights of authors in their literary and artistic works. The convention contains some basic principles. The first and the foremost principle was that there should be a principle of national treatment, according to which, if any artistic work is originated in any one of the member states then, in that case, it should be considered as originated in every state and it should be granted the same right as it will get in its own country. Apart from the national treatment, they get it is very important that this protection is granted automatically and there is no compulsion of getting oneself registered in that country.
Another important provision of this convention is that it covers works or expressions of “folklore”. Folklore refers to oral history which is passed down from generation to generation and is kept active by the people in the culture. Now, this tradition and history consist of music, legends or even myths. So, this convention gives protection to both published as well unpublished works. Article 2(6) of the convention states that the convention is to operate for the benefit of both authors as well his/her successors in title. That is why Article 7 states that the minimum duration of protection is the whole life of the author and 50 years after his death. For cinematographic works, the duration of protection is 50 years after the work has been made available to the public and in case it is not made available more than 50 years after the making of such work. This convention proved beneficial for its member countries as the work of its authors are automatically protected from being plagiarized in other countries, which ultimately will help these authors in expanding their market share across borders and deriving profit from it.
Second in this list is the Paris Convention, which was held in the year 1883. The Paris Convention is important because it was the first time the industrial property was also given consideration. This convention applied to not only inventions, trademarks and industrial designs but also utility models, trade names, an indication of source, application of origin and repression of unfair competition. This convention, like the Berne Convention,8 has been revised several times, the latest being the Stockholm Revision in 1967. A total of 11 countries (Belgium, France, Brazil, El Salvador, Guatemala, Italy, Netherlands, Portugal, Serbia, Spain, and Switzerland) were initially the members of this convention. They were later joined by Great Britain, Tunis and Ecuador, making their strength to 14.
The principle of National Treatment is one of the highlighting features of this convention. Suppose a business entity that is not from a member state is claiming protection in a member state, in that case, the business entity will have the same power and rights which the business entity or a legal person must be having in his own country. This simply means that the national law which will be applicable in a member state will also apply to any foreign legal entity or a foreigner. So, this principle makes sure that not only the foreigners will be protected but it also guarantees that they will not face any kind of discrimination. There is no form of giving and take, no requirement of reciprocation of legal protection.
Another important feature is that of the Right of Priority. This means that if the applicant of the patent application has applied in either of the member countries of this convention, then the applicant will be having a period of 6-12 months to apply for protection in other member countries. A person may sometimes file several patent applications, relating to the different parts of one single invention at different dates, so to counter that he/she can club them together and can file a single application. Now, these applications will get a status of priority and will be considered to be applied on the very first date when that applicant has applied in the first member country. This is done to prevent the applicant from any kind of exploitation. Sometimes a member country can make changes in its rules and regulation to destroy the patentability of his invention. The right of priority offers great practical advantages to the applicant to protect their patents. This right of priority can also be invoked by the successor of the applicant.
The next feature is that of the Independence of Patents. This means that if the application for a patent is refused, terminated or cancelled in one country then, in that case, it cannot become the basis for rejection in any other member state. In the same way, the grant of a patent for the invention will not obligate any other member state to issue a grant for the same invention. This rule applies to even non-members of this convention. This is done so that the applicant is protected from any kind of injustice. Sometimes a patent applicant can lose his validation on non-payment of a patent fee to that country, now this should not become the basis of rejection in another country which does not have the same rule and regulations as every country has different administrative practices.
The last feature which is my personal favourite is that of the right of the inventor to be mentioned when an application for a patent is made. In some countries like the USA, it is even required that the applicant and inventor both must be the same person, so respect, fame, and fortune is awarded to the person who deserves it.
Last in this list is the Rome Convention which was held in the year 1961. It is also known as The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization. This issue was raised in the 1928 Rome diplomatic conference to revise the Berne Convention. Finally, in 1960 a meeting was held in Hague, The Netherlands where experts from UNESCO, ILO (International Labour Officer) and United International Bureau for Protection of Intellectual Property met and drew the draft of the convention. Article 1 of the Rome Convention provides that it no way affects or prejudices copyright protection in literary as well as artistic works. This means that the authorization of an author is utmost important and his/her validity is important for the use of his/her work. This convention majorly focused on the protection of rights of performers, producers of sound recordings and broadcasters. It is pertinent to note that the use of artwork or even literary work was usually implicit in the work of performers, recorders, and broadcasters, this convention established a link with copyright protection. To become a member of this convention, a country has to be a member of the United Nation and also a member of the Berne Union or party to the Universal Copyright Convention.
This convention like the preceding convention also talks about the National treatment, Performers will be entitled to protection under this convention even if they do not belong to member countries. This was made so that a wide number of performers are covered under this convention. Broadcasting companies are entitled to national treatment if they have headquarters in another Contracting state or if the broadcast was transmitted from a transmitter situated in another member country. The same way producers of phonograms are also entitled to national treatment if they belong to other contracting states or if the phonograph was published in another member country. This convention guaranteed certain protections.
Article 7 of the convention states that it prevents the reproduction of the performance of the performers without his knowledge and consent. It also includes preventing any act which did not have the consent of the performers. Article 10 of the convention states that Producers of Phonograms are provided with the right to authorize or prohibit reproduction of their phonograms, which were reproduced without the consent of the Producers. Article 12 of the convention talks about the secondary use of phonograms. If a phonogram, published for commercial use, is used for broadcasting then, in that case, the user of that broadcasting should pay either the performer or to the producer or both. Now here the discretion is one the nation where it is broadcasted. There is no mandatory rule regarding payment of remuneration. Article 13 states that broadcasting organizations have the right to authorize or even prohibit the rebroadcasting of their broadcasts or some fixation of their broadcasts.
The minimum term of protection under the Rome Convention is 20 years from the end of the year in which the performance took place, or the broadcasting of these performances took place. The Rome Convention also permits the member countries to have a certain limitation on rights conferred by this convention. For example, Article 19 of this convention states that once the performer has given his consent to the incorporation of his performance either on a visual medium or an audiovisual fixation then, in that case, he will have no further applications which set out the right of the performers.
All these conventions played a massive role in the development of IPR laws around the world. The articles of these conventions have inspired IPR laws of many countries.
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