Berne Convention for the Protection of Literary and Artistic Works

The Berne Convention was adopted on September 9, 1886 in Berne , Switzerland . The first parties to the convention were: Belgium , Germany , France , Spain , Great Britain , Tunisia and Switzerland .

The Convention has been revised several times: in 1896 in Paris , in 1908 in Berlin , in 1914 in Berne , in 1928 in Rome , in 1948 in Brussels , in 1967 in Stockholm and in 1971 in Paris .

When choosing the name of the international convention, Union pour la protection de la Propriété littéraire et artistique (from the French - “Union for the Protection of Literary and Artistic Values”) was proposed, but the delegation from Germany opposed such a name because it protects by its internal laws not literary property, but copyright ( German: Urheberrecht ). The French opposed this term ( French Droit d'auteur ), although they used it in an agreement with Germany in 1883. As a result, at the 1885 conference, it was decided to use the term “pour la protection des ouevres” ( Russian about the protection of works ), although it was not entirely accurate, since it describes the works and not the rights to them ^[2] .

The World Intellectual Property Organization has been administering the Berne Convention since its inception in 1967.

The United States joined the convention in 1989 .

Long before the adoption of this convention, Russia concluded separate conventions on literary and artistic property in 1861 with France ^[3] and in 1862 with Belgium ^[4] . Subsequently, in connection with the alleged adoption of the Berne Convention in 1886, on August 9 (21), 1885, the Highest Command was announced to terminate these conventions with France and Belgium on July 2 (14) and January 2 (14), 1887, respectively ^{[ 5]} .

The Russian Federation acceded to the convention on March 13, 1995, with the proviso that “the Berne Convention for the Protection of Literary and Artistic Works does not apply to works that are already in the public domain of the Russian Federation on the date this Convention enters into force” ^{[ 6] [7]} . On December 11, 2012, the reservation was withdrawn by the Russian government, which was one of the conditions for Russia's entry into the WTO ^[8] .

By 2014, 167 states are parties to the Berne Convention. ^[9]

The Convention establishes a number of principles of international copyright, which received their own names.

The principle of the national regime - in accordance with it, each country party to the convention grants citizens of other participating countries at least the same copyrights as its own citizens. Any proceedings regarding works falling under the convention take place according to the laws of the country in the territory of which they are used (published, publicly performed, broadcast, etc.). Unlike, say, contract law, no import of foreign legislation into copyright relations within the country is allowed. For example, French copyright law applies to any material published or executed in France, regardless of where the material was originally created.

The principle of independence of protection - protection of a work in each country does not depend on the protection of works in other countries, including the country of origin of the work. There is one exception to this principle - the law may provide for the termination of protection of a work, the term of protection of which has already expired in the country of origin of the work.

The principle of automatic protection - copyright does not require any preliminary formalities (such as registration, a special application for copyright claims, permission of the authorities, etc.) for use and automatically occurs at the time of fixing the work in tangible form (for citizens of member countries convention) or the first publication (for works by foreign authors published in these countries).

Presumption of authorship - in the absence of evidence to the contrary, the author is the one whose name or pseudonym is indicated on the cover of the book. The Convention does not contain a definition of authorship; therefore, the concept of authorship of some works may differ in different countries. For example, in Russia only a person can be an author ^{[10] [11]} , with the exception of certain and strictly defined types of works created in the USSR ^[12] , while the USA recognizes authorship of legal entities ^[13] . The authorship of a work is determined by the laws of the country of origin.

The Berne Convention sets the minimum level of copyright that member countries must provide. Formally speaking, the rights established in the Convention establish only the level of rights granted to foreign authors on the basis of the convention. In combination with the principle of national treatment, it becomes quite difficult to implement the convention and not ensure these rights also to its citizens. Nevertheless, there are laws under the convention, small exceptions that apply only to internal affairs. The United States, for example, does not recognize copyright in official works of federal public servants.

The Convention requires the granting of the following exclusive (that is, property rights, representing a form of appropriation of the results of intellectual activity, as well as providing the opportunity to use at their discretion and prohibit other persons from using these results) or "economic" rights:

• The right to reproduce (reproduction) a work in any way and in any form (Article 9)
• Right to transfer (Article 8)
• Right of Succession (Article 14ter)
• The right to public broadcasting (television, radio, broadcast or wire) (Article 11bis)
• The right to public performance (for dramatic and musical works) (Article 11)
• The right to public reading (for literary works) (Article 11ter)
• The right to alterations, arrangements and other changes to the work ( right to process ) (Article 12)
• The right to cinematographic alteration of a work (art. 14)

The minimum term of these rights for most works is set as the whole life of the author and 50 years from the year of his death. For works published anonymously (or under a pseudonym unknown to the public), 50 years from the date of publication. The minimum term of protection for photographs is 25 years, for cinematographic works - 50 years from the moment of creation or first show. For works of decorative and applied genres, a minimum period has not been established. In practice, the calculation of the proper term of protection is even more difficult, it takes into account the various subtleties of international relations, national legislation and the fate of specific works.

In addition, article 6bis provides for a special right of the author to be recognized by the author and protect the work from any distortion that could damage his reputation.

The right of succession (Article 14ter) is the right with respect to the original works of art and the original manuscripts of writers and composers, and after his death, persons or institutions authorized by national law enjoy the inalienable right to share in each sale of the work following its first assignment, perfect by the author of the work.

• Gemini I. A., Leontiev K. B. Copyright and related rights: textbook / under. ed. I.A. Gemini. - M .: Prospect, 2009 .-- S. 245-312. - 416 p. - ISBN 978-5-392-00743-1 .
• Lipcitz D. Copyright and Related Rights = Droit d'auteur et droit voisins. - Per. with fr .; Foreword M.A. Fedotova. - M .: Ladomir; UNESCO Publishing House, 2002. - S. 526-643. - 788 p. - 2000 copies. - ISBN 5-86218-395-7 UNESCO 92-3-202837-9.
• Minkov A.M.International intellectual property protection. - SPb. : Peter, 2001 .-- S. 123-132. - 720 s. - ("Law and Practice"). - 4000 copies. - ISBN 5-318-00213-7 .
• Pilenko A. International Copyright Protection // World Illustration : Journal. - 1894. - T. 51 , No. 1310 . - S. 162-163 .

• The text of the Berne Convention for the Protection of Literary and Artistic Works, as amended in 1979 (Official Translation) (Russian) in the WIPO Lex Database
• Berne Convention for the Protection of Literary and Artistic Works (1886) (French) in the WIPO Lex Database