This article is written by Gautam Badlani. It provides a comprehensive overview of the Berne Convention and explains the scope and importance of the Convention. The article also explains the various revisions made to the Convention over time and makes certain suggestions regarding future revisions of the Convention. The article also explains how the Berne Convention has influenced the copyright regime in India. 

It has been published by Rachit Garg.

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. Many multilateral treaties and conventions have also been formulated with a view to achieving a coordinated global approach towards the protection of IPR. One such convention is the Berne Convention for the Protection of Literary and Artistic Works. It aims to protect the rights of the authors of literary and artistic works. The Berne Convention was adopted in 1886.

The Berne Convention, which was signed by only 10 countries at its inception, has more than 180 signatories today. Only the countries that are signatories to the Berne Convention can qualify to be members of the World Trade Organisation. This serves as a major incentive for countries to adhere to the Berne Convention. 

Copyright and Berne Convention 

The core of the Berne Convention deals with copyright. Copyright laws aim at protecting the economic and moral rights of authors in their work. The copyright laws confer an exclusive right on the authors to exploit and reproduce their works for economic benefits. 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. 

Historical background of Berne Convention 

Prior to the enactment of the Berne Convention, the Paris Convention for the Protection of Industrial Property (PCPIP) was enacted in 1883. This convention was the first major international convention aimed at protecting the intellectual property rights of creators and inventors. 

The Convention covered patents, industrial designs, service marks, and geographical indications. It provided uniform minimum standards for the protection of trademarks, which had to be adhered to by the signatory countries. It provided for the establishment of an international bureau to oversee the effective enforcement of the provisions of the PCPIP. 

Victor Hugo, the President of the Association littéraire et artistique internationale and a former Senator of France, was one of the biggest supporters of the Berne Convention. He campaigned for the creation of an international agreement aimed at promoting the intellectual property rights of authors. 

Prior to the enactment of the Berne Convention, there was no coordination and integration among the copyright laws of different countries. Thus, if a work was registered as a copyright in France, it enjoyed legal protection only in France but could be legally reproduced in any other country without any prior approval from the author.

The initial version of the Berne Convention was signed in 1886 by only 10 countries. Spain, France,the United Kingdom and Switzerland were among the initial signatories of the Berne Convention. It was adopted at a conference held in Berne, Switzerland and thus the Convention was named the Berne Convention. While the conference was also attended by the representative of the United States, the United States decided not to join the Berne Convention. 

The Convention, which was initially signed by only 10 countries, has more than 180 member countries today. Countries such as North Korea and Somalia have not yet joined the Berne Convention. The Convention helped shape the copyright laws of many countries. 

Need for Berne Convention in IPR 

Prior to the inception of the Berne Convention, various countries had enacted their own domestic legislation relating to the copyright of literary and artistic works. These national laws had various conceptual differences, which led to inconsistencies between the copyright regimes of different countries. Despite their differences, an underlying common feature among all the national copyright laws was that they applied only to their respective countries. Thus, domestic works were extended copyright protection only within their own countries. However, these works were also distributed in other countries. 

Many countries entered into bilateral agreements that conferred reciprocal obligations on the signatories to recognise and protect the copyrights granted in the contracting states. However, a major drawback of these agreements was that they were neither comprehensive nor uniform. 

Thus, a need was felt for an international copyright framework that could facilitate international cooperation. This led to the signing of the Berne Convention, which fostered international coordination towards the protection of copyright.  

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. 

Overview of Berne Convention in IPR  

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’. These works are the subject-matter of the convention. 

It is pertinent to note that the convention also protects scientific works. Scientific works are protected if they are present in the form of books or films. The definition also covers oral works such as lectures and addresses. These works are not present in written form. 

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. 

Translations and adaptations of artistic, musical and literary works would also be protected as original works. Similarly, encyclopedias can also be protected by virtue of the unique arrangement of their content. However, the convention does not extend protection to news items. 

The works covered under Article 2 enjoy protection in all the countries that are signatories to the Berne Convention. The Berne Convention protects the interests of the authors as well as the legal representatives and assignees of the authors. 

The Convention covers all such works that, at the time of its commencement, had not fallen into the public domain by virtue of the expiration of the period of protection. 

Authors protected by Berne Convention in IPR

As per Article 1, the countries to which the Convention applies collectively constitute a ‘Union’. The Convention extends protection to the authors, who are nationals of any of the countries of the Union. Moreover, even if the author is not a national of any of the nations of the Union, the Convention would extend protection to the author in respect of such works which are published by the author in any of the countries of the Union. 

The Convention applies to authors of cinematographic works if the maker of the cinematographic work is a resident of any of the Union’s countries. If any architectural work is located in any of the countries of the Union, then the Convention would extend to the author of such work. 

In the case of literary and artistic works, the person whose name appears on the work in the usual manner shall, in the absence of any material to the contrary, be presumed to be the author of the work. Similarly, the person or corporation whose name appears on a cinematographic work in the usual manner is, in the absence of proof to the contrary, presumed to be the maker of the cinematographic work. 

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.

The Convention thus casts an obligation on the signatories to confer the same copyright protection on domestic and foreign authors. However, the countries of the Union are free to determine the extent of protection to be conferred on the authors and the mode of redressal to be made available to them. 

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. 

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.  

In Raj Rewal v. Union of India (2019), the issue before the Court was whether an architect who has copyright over a building has a right to restrain the owner of the land, on which the building is constructed, from demolishing the building. The Court held that the requirements of urban planning outweigh the moral rights of the architect. Technical and economic requirements necessitating the modifications of a building outweigh the moral rights of the architect. Thus, the Court concluded that the owner of the land has the full right to dispose of or destroy the building constructed on the land. The moral rights of the architect do not outweigh the rights of the owner over the land. 

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. Thus, while the Convention sets a minimum limit for the term of protection, there is no ceiling period prescribed by the Convention.

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. 

Moreover, the countries may enact legislation to authorise the free use of copyrighted works for teaching purposes. The countries may also authorise the use of the works for reporting current events to the public. 

However, in both of the aforementioned cases, it is necessary to mention the source and the author of the work while making use of the copyrighted works. 

Infringing material

Unauthorised copies of a copyrighted work shall be liable to be seized in accordance with the national laws of the countries of the Union. 

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 selects the non-signatory countries that are to be admitted as observers. 

The quorum for the meetings of the Assembly is half of the total delegates. Each country has one vote in the Assembly. Abstention from voting is not considered a positive or negative vote by default. 

The Assembly has to meet at least once every two years and has the freedom to decide its own procedure. 

Executive Committee

The Assembly would select the countries that would be the members of the Executive Committee. The number of members of the Executive Committee shall correspond to one-fourth of the total member countries of the Assembly. 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. It also ensures that the policies of the Union are effectively implemented. 

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. All the countries of the Union have to communicate their copyright laws and regulations to the Bureau. 

The Bureau conducts studies related to copyright protection and suggests revisions to the Convention. 

In 1893, the International Bureaux established under the Paris Convention and the Berne Convention were merged to form the United International Bureau for the Protection of Intellectual Property. 

In the year 1970, the name of the United International Bureau was changed to World Intellectual Property Organisation. 

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. 

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 

Each country in the Union has to make a certain contribution towards the budget of the Union. If any country has arrears of contribution which exceed the amount due from it in the preceding two years, then the voting rights of such country in the organs of the Union would be suspended. 

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. 

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. 

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. 

Major amendments to the Berne Convention

The Berne Convention, at the time of its origin, was based on the needs and requirements of industrialised European countries. However, after the Second World War, the political map of the world changed significantly, and a need was felt to revise the Convention. The newly independent states were considering the possibility of adhering to the Convention. The Convention was amended to meet the concerns of the newly independent developing countries. The developing countries demanded easier access to copyright works for educational needs and technological developments. 

1896 Revision of the Berne Convention 

The 1896 Amendment authorised the Union countries to frame laws empowering domestic authorities to seize pirated companies of original works enjoying legal protection.

The original 1886 Convention stated that newspaper articles can be freely reproduced unless the author expressly prohibits the reproduction or translation. However, the 1896 Amendment made an exception for serial stories and tables in newspapers and provided that the serial stories and tables could not be reproduced without the sanction of the author. Thus, while the original version placed an obligation on the authors of the newspaper articles to prohibit reproduction, the amendment shifted the obligation on the imitators to seek the prior sanction of the author.   

1908 Revision of the Berne Convention

The 1908 Amendment recognised the right of owners of literary and artistic works to translate their works. Article 8 states that the owners of literary and artistic works have the exclusive right to make or authorise the translation of their works. 

The biggest change brought about by the 1908 Revision was the prohibition of formalities. The 1886 as well as the 1896 versions provided that the authors of the literary and artistic works would be protected in all the member countries so long as they satisfied all the formalities imposed by the home countries. However, it became difficult to prove to the competent authorities of the foreign countries that the author had complied with the formalities of the home country. Thus, the 1908 Revision prohibited the imposition of formalities on foreign authors. 

Formalities relating to the existence of the copyright as well as the exercise of the copyright are prohibited. Thus, no specific conditions or formalities can be imposed on foreign authors for invoking the judicial process or seeking injunctions or damages. It is pertinent to note that formalities relating to general litigation such as paying the filing fees or other procedural requirements, would not qualify as formalities. Only if such formalities, other than the general procedural conditions, are imposed specifically on foreign authors would such formalities be barred by the Berne Convention. 

1914 Revision of the Berne Convention

An additional protocol was added to the Berne Convention in 1914. The 1914 Protocol provided that if any non-Union country fails to protect an author of any of the contracting states, then the concerned contracting state can restrict the protection granted to the subjects or citizens of such non-Union states. 

1928 Revision of the Berne Convention

The 1928 Amendment provided that the newspaper articles relating to religion, politics and economics can be freely reproduced by the press, but the source of the original article must be clearly indicated. 

The 1928 Amendment brought moral rights within the scope of the Berne Convention. 

1948 Revision of the Berne Convention

The 1948 Amendment provided that short quotations from newspapers shall be lawful in all Union countries. Moreover, excerpts from literary and artistic works can be permitted by the Union countries with the help of suitable legislation for educational and scientific purposes. 

1967 Revision of the Berne Convention

The 1967 Amendment authorised the Union countries to permit the reproduction of literary and artistic works through domestic legislation in special circumstances. However, such reproduction must not be unreasonably prejudicial to the legitimate interests of the author and must not be in conflict with the normal exploitation of the work. 

One of the major aims of the 1967 Amendment was to encourage developing countries to join the Berne Convention. Thus, a special protocol was adopted for developing countries. The minimum copyright term was reduced from 25 years to 10 years for photographs and from 50 years to 25 years for other works. It was believed that the developing countries were reluctant to grant protection for longer periods. 

Moreover, the laws could be made by the member countries authorising the grant of compulsory licences in relation to literary and artistic works. However, the compulsory licences could be granted only after a period of 3 years from the first publication of the literary or artistic work. If the author does not make or authorise the reproduction of his work within a period of three years, then the compulsory licence can be granted for the reproduction of the work for educational and cultural purposes. 

The amendment focused on providing broader exemptions for teaching and research work. Prior to the 1967 Amendment, there were no provisions in the Berne Convention which provided for exemptions for educational and teaching purposes. The Amendment provided that the countries can, by national legislation, authorise the justified use of artistic and literary work in the form of illustration, sound recordings and broadcasts provided that the such reproduction or translation is for educational purposes. 

1971 Revision of the Berne Convention

By the 1971 Amendment, an appendix was added to the Berne Convention which contained certain special provisions for developing countries. 

This amendment permitted the developing countries to deviate from the minimum standards of protection under certain conditions. The amendment also permitted member countries to frame laws facilitating the grant of non-exclusive and non-transferable compulsory licences. These licences can be granted in special circumstances for the purposes of research, education and scholarship. However, provisions must be made to ensure just compensation for the authors and to ensure true translation and reproduction of the work. 

A compulsory licence for translation can be granted only for the language generally used in the concerned developing country. Compulsory licences relating to translation can be granted 3 years after the first publication of the work. These licences can be granted if the work has not been made available, within 3 years of its publication, in the language generally used in the concerned developing country. 

In respect of reproduction, the compulsory licences can generally be granted 5 years after the first publication of the work. However, for works relating to physical sciences and technology, the licence can be granted 3 years after the first publication and for works relating to drama, fiction and poetry, the compulsory licences can be granted 7 years after the first publication. 

When a compulsory licence is granted under the Appendix, it is necessary to indicate the name of the author on all the translations and reproductions of the work. The original title of the work should also be indicated on all the copies and translations. Compulsory licences cannot be used for exporting the copies or translations of the original work. 

Another major highlight of the 1971 Amendment was that it allowed the member countries to recognize folklore as part of their national heritage. Any member country can confer protection on such unpublished works whose author is unknown but which can reasonably be presumed to have been created by a national of such country. The member countries can designate a competent authority, through national legislation, to represent the author of the unknown work. The competent authority would protect and enforce the rights of the unknown author.   

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. It was felt that if the colonies were not brought within the scope of the Convention, then it could lead to inter-colonial piracy. 

Thus, India became a member of the Convention in 1887, by virtue of the application made by the United Kingdom on September 5, 1877. Subsequently, in 1928, a declaration of continued application was made by India. 

India initially opposed the Berne Convention and demanded reforms in the Convention. India wanted broader exemptions for research and educational purposes. In the 1967 Stockholm Conference, the developing countries, led by India, had formed a block and had been successful in securing major exemptions. 

However, the Conference was severely criticised by the developed countries, and the 1967 Revision did not come into force. In 1971, Article 34 was inserted, which provided that once Articles 1 to 21 and the Appendix come into force, no country can make a declaration under the Stockholm Act of 1967. The 1971 Revision is often regarded as a fatal blow to the attempts of the developing countries to bring reforms to the Berne Convention. 

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. 

MRF Limited v. Metro Tyres Limited (2019)

Facts 

In MRF Limited v. Metro Tyres Limited (2019), the Delhi High Court had to determine the scope of protection afforded to cinematographic films under the Copyright Act. In this case, the plaintiff had produced an advertisement and claimed to be the author of the advertisement. The defendant, who was engaged in the same business as that of the plaintiff, produced a similar advertisement. The plaintiff filed an infringement suit. 

Arguments

The defendant contended that the Copyright Act prohibited only physical copies of cinematographic works produced by duplication. Since the defendant’s advertisement was not a direct copy of the plaintiff’s advertisement, it was not barred by the Copyright Act. The plaintiff, on the other hand, contended that the Copyright Act should be interpreted in light of the Berne Convention and should cover such works which materially and essentially resemble the original work. 

Judgment 

The Delhi High Court rules that the interpretation of the Copyright Act should be in consonance with the Berne Convention. The Berne Convention protects cinematographic work as an original work and work of authorship. Thus, courts must assess cinematographic works in the same way as they assess original literary and artistic works. Article 14bis expressly provides that the author of cinematographic works shall enjoy the same rights as the authors of other original works. 

The Court thus held that works which are substantially, essentially and materially similar to original cinematographic works would be barred by the Copyright Act. However, in the present case, the defendant’s advertisement was found not to be materially and substantially similar to the advertisement of the plaintiff. Thus, the suit for infringement was dismissed. 

DU Photocopy case

Facts

In the Chancellor, Masters & Scholars v. Rameshwari Photocopy Services (2016) (popularly known as Delhi University Photocopy case), certain international publishers had filed a suit against Delhi University and Rameshwari Photocopy Shop for alleged infringement of copyright works. The Photocopy Shop was selling copies of course material to the students. This course material had been prepared by the teachers of Delhi University and it contained portions of some of the books of international publishers. The international publishers objected to the unauthorised use and reproduction of their work and filed a suit before the Delhi High Court. 

Arguments

The plaintiff argued that the unauthorised use of their works was a copyright violation and thus pleaded for an injunction. The plaintiffs pleaded that the defendants should be held liable under Section 51 of the Copyright Act. 

The defendants argued that the Copyright Act as well as the Berne Convention makes special exceptions for educational purposes. Section 52 of the Copyright Act permits unauthorised use of copyrighted works for educational purposes and this provision is based on the Berne Convention. 

Judgment 

The High Court noted that the Berne Convention permits privy countries to enact domestic legislation permitting the unauthorised use of copyrighted works for teaching purposes. The Berne Convention only requires that such unauthorised use should not prejudice the legitimate interests of the author. Moreover, the unauthorised use should be justified and compatible with fair practices. 

The Delhi High Court held that Section 52(1)(i) permits the unauthorised reproduction of copyright works by a teacher and pupil in the course of instruction. This provision also extends to reproduction of copyrighted material by an educational institution or its agent for educational provisions. Thus, the High Court refused to issue an injunction against the Photocopy Shop and Delhi University. 

The Court ruled that the photocopies of the compilation of relevant portions of different books would not constitute copyright infringement if the reproduction was made for educational purposes. The educational institutions do not need to obtain a licence from publishers to distribute course packs to their students. 

Impact of Berne Convention on the US and developed countries 

The developed countries had been the pioneers of the Berne Convention. Most of the copyright works originate in developed countries, and thus, the developed countries had been advocating for strict copyright laws and fewer exceptions. 

The United States was initially reluctant in joining the Berne Convention. The United States laws mandated registration of copyrighted works but did not protect moral rights. Joining the Berne Convention required the United States to amend its domestic laws. Ultimately, the United States (US) joined the Berne Convention in 1988. The US enacted the U.S. Berne Convention Implementation Act of 1988 to make changes to its copyright laws and make them compatible with the Berne Convention. 

Suggestions 

With the advancement of digital technologies and digital publication, there is scope for further improvement in the scope and mechanism of the Berne Convention. The Berne Convention relates only to the protection of foreign authors by Union countries. However, the Convention does not govern how the member countries should protect their domestic authors. Thus, the member countries can enact laws contrary to the spirit of the Berne Convention, provided that those laws apply only to domestic authors. 

The purpose of the Berne Convention was to protect the rights of the authors and thus, it should prescribe certain minimum standards of protection for domestic authors. 

Artificial Intelligence 

The Berne Convention should be revised to include provisions relating to copyright on Artificial Intelligence (AI) generated works. The Berne Convention can provide a uniform mechanism relating to the copyright of AI works, and this mechanism can be adopted by the member countries. 

The Berne Convention does not contain an adequate definition of author. The Convention should specify whether AI would qualify as an author or not. The Berne Convention does stipulate that if the name of a person is indicated on the literary or artistic work as the author then such a person would be presumed to be the original author of the work in the absence of proof to the contrary. This suggests that natural as well as legal persons would qualify as authors since the name of legal as well as natural persons can be indicated on literary and artistic works. 

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. 

Frequently Asked Questions (FAQs)

What is the concept of droit d’auteur? 

Droit d’auteur is a French term which means ‘right of the author’. It refers to the French copyright law of the 18th century. The Berne Convention was inspired by French law. Droit d’auteur aimed to secure the publishing rights of the authors and editors. The King used to grant privileges to the authors and editors under which the editors had the monopoly over the publication of the work. 

How is droit d’auteur different from the copyright law applied in the common law countries?

The copyright law of the common law countries developed in the 18th century almost parallel to the concept of droit d’auteur. 

The primary difference between the two was that the copyright law of the common law countries was concerned only with the economic rights of the authors and aimed at protecting their commercial interests. However, droit d’auteur recognizes the personal relationship between the author and his work. Thus, it protects both the moral as well as economic rights of the authors. 

Which country is the ex-officio member of the Executive Committee of the Berne Convention?

Switzerland is the ex-officio member country of the Executive Committee. The remaining members are elected by the Assembly. 

References 

• https://drummondadvisors.com/en/2022/08/26/copyright-the-main-features/ 
• https://egyankosh.ac.in/bitstream/123456789/51605/1/Unit-5.pdf 
• https://spicyip.com/2023/06/ooops-india-fell-into-berne-convention.html 
• https://spicyip.com/2023/07/indian-copyrights-stockholm-syndrome-or-how-india-learnt-to-stop-complaining-and-love-copyright.html 
• https://www.copibec.ca/en/nouvelle/163/do-you-know-what-the-berne-convention-is- 
• https://www.law.cornell.edu/wex/berne_convention#:~:text=The%20convention%20was%20created%20in,member%20countries%20and%20city%2Dstates. 

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