Berne Convention for the Protection of Literary and Artistic Works, 1886

(Revised at Paris in 1971)

From among the different manifestations of creativity, literary and artistic expressions are those that have enjoyed protection over a long period of time. Although protected mainly through informal mechanisms, art and literature has been the object of royal patronage in the past. The Berne Convention for the Protection of Literary and Artistic Works was formed in 1886 by those countries that had an “animated” desire to protect the rights of authors in literary and artistic works in as “effective and uniform” a manner as possible.

The foremost contribution of this Convention was to have defined the term “literary and artistic works”. It includes a long list of creative expressions that have been broadly grouped into different categories, such as, dramatic works; lectures; photographic works; musical compositions; and works of applied art. The Convention also allows the member countries to stipulate that the defined list of works need to be “fixed in some material form” in order to claim the protection.

In addition, the Convention initiated the following, which have now evolved as the main features of IPR protection accorded to literary and artistic works:

1.      Concept of Moral Rights – As a significant tribute to authorship and creativity, the Berne Convention created an exception to the commercial character of IPRs. Independent of the author’s economic rights, and even after such rights have been transferred, an author would continue to enjoy a set of rights termed as “Moral Rights”. The moral rights consist of – (1) ‘right of attribution’ or ‘right to paternity’ – which provides the author the continuing right to be acknowledged as the creator of the protected work, despite any transfer of the economic rights of exploiting the work; and (2) ‘right of integrity’ – which empowers the author to object to any form of derogatory treatment meted out to his/her creative work. The basis of this right is to protect the honour and reputation of the author as against a prejudicial exploitation of the protected work. Thus, the author could object to any form of mutilation, distortion, or modification of the work, which he/she considers to be unacceptable to one’s reputation. However, despite being deservingly accorded the exalted status under the Convention, moral rights are not mandatory and binding across the world since the TRIPs Agreement, which incorporates the first 21 Articles of this Convention, makes an explicit exclusion of moral rights. It is now left to the laws of each country to provide for the protection and enforcement of moral rights in their respective jurisdictions. It is heartening to note that the Indian Copyright law (Section 57 of Copyright Act, 1957) expressly protects the moral rights of an author and the Courts have been prompt in enforcing them as well.

2.      Free Uses – Considering the wide prevalence and use of copyrighted works in the public domain, ones foremost concern is not to protect our copyright, but to ensure that we do not unintentionally violate somebody else’s copyright! Quite expectedly, the Berne Convention has carved out certain exceptions termed as “Free Uses”. As the term suggests, there are particular uses that have been freed from the rigour of copyright enforcement, owing to the nature of such activities. For instance, a fair quotation from a published work; or use of copyrighted material in the process and for the purpose of teaching; or towards coverage of news events and current affairs or for “informatory purposes”, a protected material could be utilized in a fair manner. However, the Berne Convention makes it very clear, that even in all of such free uses, due mention should be made of the source and the author needs to be appropriately acknowledged.

3.      Flexibility in Enforcement – The one common theme that runs throughout the provisions of the Convention is that the member nations are given complete autonomy to decide and determine the enforcement and safeguard mechanisms for their jurisdiction. It is a commendable form of flexibility that the Convention affords and it is pertinent to mention that even the TRIPs Agreement has sustained the freedom provided in this vital sphere of IPR enforcement. Furthermore, the Convention provides for an unconditional guarantee of the right of the Government of each country to permit, or to control, or to prohibit, by law, “the circulation, presentation, or exhibition of any work” as may be found necessary to do so.

There are many other provisions of the Berne Convention that deserve a more detailed explanation and deeper understanding. However, keeping with the intention behind this series, certain special features of the select Conventions are being projected so as to provide a flavour of the international regime of IPRs. We shall continue with this endeavour in the next part with another International Convention being highlighted.