The Berne Convention

The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way as it recognises the copyright of its own nationals. For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

In addition to establishing a system of equal treatment that internationalised copyright amongst signatories, the agreement also required member states to provide strong minimum standards for copyright law.

Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration (note however that when the United States joined the Convention in 1988, they continued to make statutory damages and attorney’s fees only available for registered works).

The Berne Convention states that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author’s death, but parties are free to provide longer terms, as the European Union did with the 1993 Directive on harmonising the term of copyright protection. For photography, the Berne Convention sets a minimum term of 25 years from the year the photograph was created, and for cinematography the minimum is 50 years after first showing, or 50 years after creation if it hasn’t been shown within 50 years after the creation. Countries under the older revisions of the treaty may choose to provide their own protection terms, and certain types of works (such as phonorecords and motion pictures) may be provided shorter terms.

Although the Berne Convention states that the copyright law of the country where copyright is claimed shall be applied, article 7.8 states that “unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work”, i.e. an author is normally not entitled a longer copyright abroad than at home, even if the laws abroad give a longer term. This is commonly known as “the rule of the shorter term”. Not all countries have accepted this rule.

The Berne Convention authorizes countries to allow “fair” uses of copyrighted works in other publications or broadcasts. The Agreed Statement of the parties to the WIPO Copyright Treaty of 1996 states that: “It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention.” This language may mean that Internet service providers are not liable for the infringing communications of their users.

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