Summary of The Berne Convention For The Protection of Literary and Artistic Works (1886)

Summary of the Berne Convention for the
Protection of Literary and Artistic Works

(1886)
The Berne Convention deals with the protection of works and the rights
of their authors. It is based on three basic principles and contains a
series of provisions determining the minimum protection to be granted,
as well as special provisions available to developing countries that
want to make use of them.
(1) The three basic principles are the following:
(a) Works originating in one of the Contracting States (that is, works the
author of which is a national of such a State or works first published in
such a State) must be given the same protection in each of the
other Contracting States as the latter grants to the works of its own
nationals (principle of "national treatment") [1].
(b) Protection must not be conditional upon compliance with any
formality (principle of "automatic" protection) [2].
(c) Protection is independent of the existence of protection in the country
of origin of the work (principle of "independence" of protection). If,
however, a Contracting State provides for a longer term of protection
than the minimum prescribed by the Convention and the work ceases to
be protected in the country of origin, protection may be denied once
protection in the country of origin ceases [3].
(2) The minimum standards of protection relate to the works and rights
to be protected, and to the duration of protection:
(a) As to works, protection must include "every production in the literary,
scientific and artistic domain, whatever the mode or form of its
expression" (Article 2(1) of the Convention).
(b) Subject to certain allowed reservations, limitations or exceptions, the

following are among the rights that must be recognized as exclusive
rights of authorization:
 the right to translate,
 the right to make adaptations and arrangements of
the work,
 the right to perform in public dramatic, dramatico-
musical and musical works,
 the right to recite literary works in public,
 the right to communicate to the public the
performance of such works,
 the right to broadcast (with the possibility that a
Contracting State may provide for a mere right to equitable
remuneration instead of a right of authorization),
 the right to make reproductions in any manner or
form (with the possibility that a Contracting State may permit, in
certain special cases, reproduction without authorization, provided
that the reproduction does not conflict with the normal exploitation
of the work and does not unreasonably prejudice the legitimate
interests of the author; and the possibility that a Contracting State
may provide, in the case of sound recordings of musical works, for
a right to equitable remuneration),
 the right to use the work as a basis for an
audiovisual work, and the right to reproduce, distribute, perform
in public or communicate to the public that audiovisual work [4].
The Convention also provides for "moral rights", that is, the right to
claim authorship of the work and the right to object to any mutilation,
deformation or other modification of, or other derogatory action in
relation to, the work that would be prejudicial to the author's honor or
reputation.
(c) As to the duration of protection, the general rule is that protection
must be granted until the expiration of the 50th year after the author's
death. There are, however, exceptions to this general rule. In the case of
anonymous or pseudonymous works, the term of protection expires 50
years after the work has been lawfully made available to the public,
except if the pseudonym leaves no doubt as to the author's identity or if
the author discloses his or her identity during that period; in the latter
case, the general rule applies. In the case of audiovisual
(cinematographic) works, the minimum term of protection is 50 years
after the making available of the work to the public ("release") or – failing
such an event – from the creation of the work. In the case of works of
applied art and photographic works, the minimum term is 25 years from
the creation of the work [5].
(3) The Berne Convention allows certain limitations and exceptions on
economic rights, that is, cases in which protected works may be used
without the authorization of the owner of the copyright, and without
payment of compensation. These limitations are commonly referred to
as "free uses" of protected works, and are set forth in Articles 9(2)
(reproduction in certain special cases), 10 (quotations and use of works
by way of illustration for teaching purposes), 10bis (reproduction of
newspaper or similar articles and use of works for the purpose of
reporting current events) and 11bis(3) (ephemeral recordings for
broadcasting purposes).
(4) The Appendix to the Paris Act of the Convention also permits
developing countries to implement non-voluntary licenses for translation
and reproduction of works in certain cases, in connection with
educational activities. In these cases, the described use is allowed
without the authorization of the right holder, subject to the payment of
remuneration to be fixed by the law.
The Berne Union has an Assembly and an Executive Committee. Every

country that is a member of the Union and has adhered to at least the
administrative and final provisions of the Stockholm Act is a member of
the Assembly. The members of the Executive Committee are elected
from among the members of the Union, except for Switzerland, which is
a member ex officio.
The establishment of the biennial program and budget of the WIPO
Secretariat – as far as the Berne Union is concerned – is the task of its
Assembly.
The Berne Convention, concluded in 1886, was revised at Paris in 1896

and at Berlin in 1908, completed at Berne in 1914, revised at Rome in
1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971,
and was amended in 1979.
The Convention is open to all States. Instruments of ratification or

accession must be deposited with the Director General of WIPO [6].
[1] Under the Agreement on Trade-Related Aspects of Intellectual

Property Rights (TRIPS Agreement), the principles of national treatment,
automatic protection and independence of protection also bind those
World Trade Organization (WTO) Members not party to the Berne
Convention. In addition, the TRIPS Agreement imposes an obligation of
"most-favored-nation treatment", under which advantages accorded by a
WTO Member to the nationals of any other country must also be
accorded to the nationals of all WTO Members. It is to be noted that the
possibility of delayed application of the TRIPS Agreement does not
apply to national treatment and most-favored obligations.
[2] Idem.
[3] Idem.
[4] Under the TRIPS Agreement, an exclusive right of rental must be
recognized in respect of computer programs and, under certain
conditions, audiovisual works.
[5] Under the TRIPS Agreement, any term of protection that is calculated
on a basis other than the life of a natural person must be at least 50
years from the first authorized publication of the work, or – failing such
an event – 50 years from the making of the work. However, this rule
does not apply to photographic works, or to works of applied art.
[6] It is to be noted that WTO Members, even those not party to the
Berne Convention, must comply with the substantive law provisions of
the Berne Convention, except that WTO Members not party to the
Convention are not bound by the moral rights provisions of the
Convention.

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Summary of the Berne Convention for the

Protection of Literary and Artistic Works

(b) Subject to certain allowed reservations, limitations or exceptions, the

The Berne Union has an Assembly and an Executive Committee. Every

The Berne Convention, concluded in 1886, was revised at Paris in 1896

The Convention is open to all States. Instruments of ratification or

[1] Under the Agreement on Trade-Related Aspects of Intellectual

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