rests 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
which 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 which
were 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")3.
(2) The minimum standards of protection relate to the works and
rights to be protected, and the duration of the protection:
(b) Such protection must not be conditional upon compliance with
any formality (principle of "automatic" protection)3.
(c) Such protection is independent of the existence of protection
in the country of origin of the work (principle of the "independence"
of protection). If, however, a contracting State provides for a longer
term 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 ceases3.
(a) As to works, the protection must include "every
production in the literary, scientific and artistic domain, whatever may
be the mode or form of its expression" (Article 2(1) of the Convention).
(3) Countries regarded as developing countries in conformity
with the established practice of the General Assembly of the United Nations
may, for certain works and under certain conditions, depart from these
minimum standards of protection with regard to the right of translation
and the right of reproduction.
(b) Subject to certain permitted reservations, limitations or
exceptions, the following are among the rights which must be recognized
as exclusive rights of authorization:
(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 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 such a work5.
- the right to translate,
- the right to make adaptations and arrangements of the work,
- the right to perform in public dramatic, dramatico-musical and
- the right to recite in public literary works,
- the right to communicate to the public the performance of such
- the right to broadcast (with the possibility of a contracting
State to provide for a mere right to equitable remuneration instead of
a right of authorization),
- the right to make reproduction in any manner or form (with the
possibility of a contracting State to 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 with the possibility
of a contracting State to 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 work4.
- 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 or deformation or other modification of, or other derogatory
action in relation to, the work which would be prejudicial to the author's
honor or reputation.
The Berne Union
has an Assembly
and an Executive Committee
. Every country
member of the Union which has adhered
to at least the administrative
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
On January 1, 1997, the Executive Committee had 30 members.
The establishment of the biennial program
of the International
Bureau-as far as the Berne Union is concerned-is the task of its Assembly
1 It is to be noted that WTO Members, even if
they are not party to the Berne Convention (e.g., Indonesia), must comply
with the substantive law provisions of the Berne Convention, except that
WTO Members not party to the Berne Convention are not bound by the moral
rights provisions of the Berne Convention.
2 It is to be noted that developing and "transition"
countries may, at least until 2000, delay the application of most of the
obligations provided for in the TRIPS Agreement (Article 65). Naturally,
States party to the Berne Convention cannot delay the application of their
obligations provided for in the Berne Convention.
3 Under the TRIPS Agreement, the principles of
national treatment, automatic protection and independence of protection
also bind those WTO Members which are 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 mentioned above does not apply to national treatment
and most-favored-treatment obligations.
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
which 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 works of applied art.
For a list of States party to this convention, see here.