Author- ENAKSHI SARKAR
Elaboration
The Berne Convention
The International Union for the Protection of Literary and Artistic Works, known more simply as the Berne Union or Berne Convention, is the premier multilateral copyright agreement. The Berne Convention was formed in 1886 and was subsequently revised on seven occasions. The latest of these provisions, concluded in Paris in 1971, forms the current Berne Convention text.
The Berne Convention further specifies the individuals eligible for protection in Article 3. Berne requires that protection be afforded to works, whether published or not, of an author who is a national or habitual resident of a Berne signatory state. In addition, authors who are not nationals or residents of a Berne signatory state may obtain protection if their works are either (1) first published in a Berne signatory state or (2) published simultaneously in a Berne signatory state and a state that has not acceded to the Berne Convention. Under Berne, a work is considered to have been simultaneously published in a Berne signatory state so long as the work was published there within 30 days of the first publication in a non-member state.6 Article 5(2) of the Berne Convention requires that, for works outside their country of origin, copyright protection be afforded without formalities. The term “formalities” includes several traditional features of U.S. copyright law, including Copyright Office registration and the placement of notice on copies of the work.
Article 5(2) abolishes these requirements for works outside of their country of origin. Although formalities can be imposed in the country in which the work originated, if a work originates from a Berne signatory state, that work must be protected automatically in all other Berne countries.
The minimum copyright term under Berne is the life of the author plus 50 years or, in the case of anonymous or pseudonymous works, 50 years from the date of publication. Article 7 of the Berne Convention specifies that signatories may grant terms in excess of this minimum.9 In cases where Berne Convention signatories offer different terms of protection, “the term shall not exceed the term fixed in the country of the origin of the work.”10
The TRIPS Agreement
Although the venerable Berne Convention remains the world’s prominent copyright treaty, it suffers from two notable defects. First, consensus must be achieved among its signatory states for revision to occur. As Berne’s numerous signatory states possess widely varying copyright interests, unanimity has become virtually impossible to achieve. Consequently the Berne Convention no longer serves as a viable platform for copyright reform. Second, the obligations of the Berne Convention cannot be practically enforced. The Berne Convention stipulates that compliance disputes are to be adjudicated before the International Court of Justice. As this tribunal effectively lacks the authority to enforce its judgments, no such suit has ever been brought.18 Each signatory’s sense of honour, along with diplomatic efforts from other member states, are effectively the only compliance measures that exist under Berne.
The TRIPS Agreement is the most advanced multinational agreement on intellectual property yet completed. Because every WTO member has agreed to comply with the TRIPS Agreement, its core provisions merit review here. The TRIPS Agreement expounds both national treatment and “most favoured nation” principles.20 The national treatment principle provides that each WTO member must accord to nationals of another member treatment no less favourable than it accords to its own nationals. Under the “most favoured nation” provisions, with limited exceptions, any privilege granted to nationals of one WTO member state must be afforded to nationals of all WTO member states
The TRIPS Agreement also sets forth minimum standards of intellectual property protection. With respect to copyright, the TRIPS Agreement incorporates Berne’s substantive obligations. All WTO members must comply with Articles 1 through 21 of the Berne Convention, with the exception of Article 6bis (pertaining to moral rights).21 The TRIPS Agreement additionally requires WTO member states to protect computer programs as literary works, as well as data compilations that, by virtue of their selection or arrangement, constitute “intellectual creations.”.
Additional International Copyright Agreements
The Rome Convention
The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was signed in Rome in 1961.25 By focusing upon performers, record producers and broadcasters, the Rome Convention is said to concern “neighbouring rights”—rights akin to copyright but concerning non-traditional subject matter. Rome Convention signatories agree to provide minimum protection standards by restricting the broadcasting of live performances, the recording of unfixed performances, and in certain circumstances the reproduction of a fixation of the performance. The United States, which does not confer public performance rights in sound recordings, has not joined the Rome Convention.
The Geneva Phonograms Convention
The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms was formed in Geneva in 1971.26 Signatories agree to protect nationals of other member states against the unauthorized manufacture, importation and distribution of copies of sound recordings. The United States became a party to the Geneva Phonogram Convention in 1974.
Brussels Satellite Convention.
The Convention Relating to the Distribution of Programme–Carrying Signals Transmitted by Satellite was formed in Brussels in 1974.27 Signatories to the Brussels Convention pledge to take adequate measures to prevent the misappropriation of satellite signals. The United States became a party to the Brussels Satellite Convention in 1985.
The WIPO Treaties.
Two treaties were completed under the auspices of the World Intellectual Property Organization (WIPO) in 1996. The WIPO Copyright Treaty includes a number of different provisions that build upon the Berne Convention.28 Article 2 of the WIPO Copyright Treaty calls for the protection of computer programs as literary works, while Article 5 provides for the copyright protection of data compilations that, by virtue of their selection or arrangement, constitute “intellectual creations.” Signatories to the WIPO Copyright Treaty also agree to confer distribution and rental rights to computer works, movies and works embodied in phonograms. The WIPO Copyright Treaty further obliged signatories to provide legal protection for technological protection measures and rights management information. The Digital Millennium Copyright Act of 1998, discussed previously at § 7.7 of this text, implemented these latter obligations domestically. The second WIPO treaty, the WIPO Performances and Phonograms Treaty, calls for the grant of additional rights beyond those mandated by the Geneva Phonograms Convention.29 This treaty confirms that the reproduction right accorded to phonogram producers extends to “any manner or form,” including digital media. The treaty also builds upon the TRIPS Agreement by articulating a right to prevent the fixation, reproduction, broadcasting and communication to the public of live performances. The United States became a signatory to both WIPO treaties in 1998.
Conclusion
The Agreement on Trade–Related Aspects of Intellectual Property Rights, a component of the international agreement establishing the World Trade Organization (WTO),37 has been joined by virtually every member of the world trading community. As the first treaty that extensively required signatory nations to maintain specified standards of substantive patent law, the so-called “TRIPS Agreement” was an impressive accomplishment. The TRIPS Agreement specifies that member states must observe certain requirements pertaining to patent-eligible subject matter, patent term, and standards of patentability such as novelty and no obviousness.
