Berne convention.

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, dramatical-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 honour 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-favoured-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-favoured 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.

Universal Copyright Convention: - 1952

UNESCO- came into force 1956.

Under automatic protection: -

When work comes into being, formal notice is to be attached with name of author/ name of owner &
year of publication.

Copyright: - lifetime + 50

Anonymous and pseudonymous works: - 50 years

Cinematography: - 50 years.

Berne convention difference with UCC

Berne: - not flexible, licensing- unlimited; not in strict manner, term- lifetime +50, no formal notice,
special provisions for developing nations.

UCC: -flexible- more member countries, right of translation & adaptation only through license of 7
years, term period is lifetime +25 years, formal notice, universal.

Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations

The Rome Convention secures protection in performances for performers, in phonograms for
producers of phonograms and in broadcasts for broadcasting organizations.

(1) Performers (actors, singers, musicians, dancers and those who perform literary or artistic works)
are protected against certain acts to which they have not consented, such as the broadcasting and
communication to the public of a live performance; the fixation of the live performance; the
reproduction of the fixation if the original fixation was made without the performer's consent or if
the reproduction was made for purposes different from those for which consent was given.

(2) Producers of phonograms have the right to authorize or prohibit the direct or indirect
reproduction of their phonograms. In the Rome Convention, “phonograms” means any exclusively
aural fixation of sounds of a performance or of other sounds. Where a phonogram published for
commercial purposes gives rise to secondary uses (such as broadcasting or communication to the
public in any form), a single equitable remuneration must be paid by the user to the performers, to
the producers of the phonograms, or to both. Contracting States are free, however, not to apply this
rule or to limit its application.

(3) Broadcasting organizations have the right to authorize or prohibit certain acts, namely the
rebroadcasting of their broadcasts; the fixation of their broadcasts; the reproduction of such
fixations; the communication to the public of their television broadcasts if such communication is
made in places accessible to the public against payment of an entrance fee.

The Rome Convention allows for limitations and exceptions to the above-mentioned rights in
national laws as regards private use, use of short excerpts in connection with reporting current
events, ephemeral fixation by a broadcasting organization by means of its own facilities and for its
own broadcasts, use solely for the purpose of teaching or scientific research and in any other cases
where national law provides exceptions to copyright in literary and artistic works. Furthermore, once
a performer has consented to the incorporation of a performance in a visual or audiovisual fixation,
the provisions on performers' rights have no further application.

As to duration, protection must last at least until the end of a 20-year period computed from the end
of the year in which (a) the fixation was made, for phonograms and for performances incorporated
therein; (b) the performance took place, for performances not incorporated in phonograms; (c) the
broadcast took place. However, national laws increasingly provide for a 50-year term of protection, at
least for phonograms and performances.

WIPO is responsible, jointly with the International Labour Organization (ILO) and the United Nations
Educational, Scientific and Cultural Organization (UNESCO), for the administration of the Rome
Convention. These three organizations constitute the Secretariat of the Intergovernmental
Committee set up under the Convention consisting of the representatives of 12 Contracting States.

The Convention does not provide for the institution of a Union or budget. It establishes an
Intergovernmental Committee composed of Contracting States that considers questions concerning
the Convention [1].

This Convention is open to States party to the Berne Convention for the Protection of Literary and
Artistic Works (1886) or to the Universal Copyright Convention. Instruments of ratification or
accession must be deposited with the Secretary-General of the United Nations. States may make
reservations regarding the application of certain provisions.

TRIPS: - (Trade-Related Aspects of Intellectual Property Rights.)

1995: 5 yrs. – developed

10 yrs. – developing countries.

15 yrs. – least developed countries.

Main principles:
  Standards- work, procedure, rights conferred, duration.
 Enforcement- domestic procedure for protection, remedies, civil, administratrive & criminal
 dispute settlements,

Article 13,

E.C. asbestos case

Objectives of TRIPS:

 for promotion of international trade and effective protection of intellectual property

 ensuring measures and procedures to enforce intellectual property themselves do not
become barriers for international trade.
 Promotion of innovation and dissemination of technology
 Social and economic development
 Balancing rights and obligations

TRIPS coined the term idea expression dichotomy in article 9.2

Article 10.1: computer codes are considered as literary works under berne convention

Article 10.2: compilation of data and databases can be given copyrighted protection.

Right of rental in case of computer programs and cinema was introduced by TRIPS under article 11.

Article 14.1: fixation of phonographs and performances through wireless medium.

Summary of the WIPO Performances and Phonograms Treaty (WPPT) (1996)

The WIPO Performances and Phonograms Treaty (WPPT) deals with the rights of two kinds of
beneficiaries, particularly in the digital environment: (i) performers (actors, singers, musicians,
etc.); and (ii) producers of phonograms (persons or legal entities that take the initiative and have
the responsibility for the fixation of sounds). These rights are addressed in the same instrument,
because most of the rights granted by the Treaty to performers are rights connected to their
fixed, purely aural performances (which are the subject matter of phonograms).

As far as performers are concerned, the Treaty grants performers economic rights in their
performances fixed in phonograms (not in audiovisual fixations, such as motion pictures): (i) the
right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of
making available.

The right of reproduction is the right to authorize direct or indirect reproduction of the
phonogram in any manner or form.

The right of distribution is the right to authorize the making available to the public of the original
and copies of the phonogram through sale or other transfer of ownership.

The right of rental is the right to authorize the commercial rental to the public of the original and
copies of the phonogram, as determined in the national law of the Contracting Parties (except for
countries that, since April 15, 1994, have had a system in force for equitable remuneration of
such rental).
The right of making available is the right to authorize the making available to the public, by wire
or wireless means, of any performance fixed in a phonogram, in such a way that members of the
public may access the fixed performance from a place and at a time individually chosen by them.
This right covers, in particular, on-demand, interactive making available through the Internet.

As to unfixed (live) performances, the Treaty grants performers: (i) the right of broadcasting
(except in the case of rebroadcasting); (ii) the right of communication to the public (except where
the performance is a broadcast performance); and (iii) the right of fixation.

The Treaty also grants performers moral rights, that is, the right to claim to be identified as the
performer and the right to object to any distortion, mutilation or other modification that would
be prejudicial to the performer's reputation.

As far as producers of phonograms are concerned, the Treaty grants them economic rights in
their phonograms: (i) the right of reproduction; (ii) the right of distribution; (iii) the right of
rental; and (iv) the right of making available.

The right of reproduction is the right to authorize direct or indirect reproduction of the
phonogram in any manner or form.

The right of distribution is the right to authorize the making available to the public of the original
and copies of the phonogram through sale or other transfer of ownership.

The right of rental is the right to authorize the commercial rental to the public of the original and
copies of the phonogram, as determined in the national law of the Contracting Parties (except for
countries that, since April 15, 1994, have a system in force for equitable remuneration of such
rental).

The right of making available is the right to authorize making available to the public, by wire or
wireless means, a phonogram in such a way that members of the public may access the
phonogram from a place and at a time individually chosen by them. This right covers, in
particular, on-demand, interactive making available through the Internet.

The Treaty provides that performers and producers of phonograms have the right to a single
equitable remuneration for the direct or indirect use of phonograms, published for commercial
purposes, broadcasting or communication to the public. However, any Contracting Party may
restrict or – provided that it makes a reservation to the Treaty – deny this right. In the case and
to the extent of a reservation by a Contracting Party, the other Contracting Parties are permitted
to deny, vis-à-vis the reserving Contracting Party, national treatment ("reciprocity").

As to limitations and exceptions, Article 16 of the WPPT incorporates the so-called "threestep"
test to determine limitations and exceptions, as provided for in Article 9(2) of the Berne
Convention, extending its application to all rights. The accompanying Agreed Statement provides
that such limitations and exceptions, as established in national law in compliance with the Berne
Convention, may be extended to the digital environment. Contracting States may devise new
exceptions and limitations appropriate to the digital environment. The extension of existing or
the creation of new limitations and exceptions is allowed if the conditions of the "three-step"
test are met.

The term of protection must be at least 50 years.

The enjoyment and exercise of the rights provided for in the Treaty cannot be subject to any
formality.

The Treaty obliges Contracting Parties to provide for legal remedies against the circumvention of
technological measures (e.g., encryption) used by performers or phonogram producers in
connection with the exercise of their rights, and against the removal or altering of information –
such as the indication of certain data that identify the performer, performance, producer of the
phonogram and the phonogram itself – necessary for the management (e.g., licensing, collecting
and distribution of royalties) of the said rights ("rights management information").

The Treaty obliges each Contracting Party to adopt, in accordance with its legal system, the
measures necessary to ensure the application of the Treaty. In particular, each Contracting Party
must ensure that enforcement procedures are available under its law so as to permit effective
action against any act of infringement of rights covered by the Treaty. Such action must include
expeditious remedies to prevent infringement as well as remedies that constitute a deterrent to
further infringement.

The Treaty establishes an Assembly of the Contracting Parties whose main task is to address
matters concerning the maintenance and development of the Treaty. It entrusts to the
Secretariat of WIPO the administrative tasks concerning the Treaty.

The Treaty was concluded in 1996 and entered into force in 2002.

The Treaty is open to States members of WIPO and to the European Community. The Assembly
constituted by the Treaty may decide to admit other intergovernmental organizations to become
party to the Treaty. Instruments of ratification or accession must be deposited with the Director
General of WIPO.

Summary of the WIPO Copyright Treaty (WCT) (1996)

The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that deals
with the protection of works and the rights of their authors in the digital environment. Any
Contracting Party (even if it is not bound by the Berne Convention) must comply with the
substantive provisions of the 1971 (Paris) Act of the Berne Convention for the Protection of
Literary and Artistic Works (1886). Furthermore, the WCT mentions two subject matters to be
protected by copyright: (i) computer programs, whatever the mode or form of their expression;
and (ii) compilations of data or other material ("databases"), in any form, which, by reason of the
selection or arrangement of their contents, constitute intellectual creations. (Where a database
does not constitute such a creation, it is outside the scope of this Treaty.)

As to the rights granted to authors, apart from the rights recognized by the Berne Convention,
the Treaty also grants: (i) the right of distribution; (ii) the right of rental; and (iii) a broader right
of communication to the public.

 The right of distribution is the right to authorize the making available to the public of the
original and copies of a work through sale or other transfer of ownership.

 The right of rental is the right to authorize commercial rental to the public of the original and
copies of three kinds of works: (i) computer programs (except where the computer program
itself is not the essential object of the rental); (ii) cinematographic works (but only in cases
where commercial rental has led to widespread copying of such works, materially impairing
the exclusive right of reproduction); and (iii) works embodied in phonograms as determined
in the national law of Contracting Parties (except for countries which, since April 15, 1994,
have had a system in force for equitable remuneration of such rental).

 The right of communication to the public is the right to authorize any communication to the
public, by wire or wireless means, including "the making available to the public of works in a
way that the members of the public may access the work from a place and at a time
individually chosen by them". The quoted expression covers, in particular, on-demand,
interactive communication through the Internet.

As to limitations and exceptions, Article 10 of the WCT incorporates the so-called "threestep"
test to determine limitations and exceptions, as provided for in Article 9(2) of the Berne
Convention, extending its application to all rights. The Agreed Statement accompanying the WCT
provides that such limitations and exceptions, as established in national law in compliance with
the Berne Convention, may be extended to the digital environment. Contracting States may
devise new exceptions and limitations appropriate to the digital environment. The extension of
existing or the creation of new limitations and exceptions is allowed if the conditions of the
"three-step" test are met.

As to duration, the term of protection must be at least 50 years for any kind of work.

The enjoyment and exercise of the rights provided for in the Treaty cannot be subject to any
formality.

The Treaty obliges Contracting Parties to provide legal remedies against the circumvention of
technological measures (e.g., encryption) used by authors in connection with the exercise of
their rights, and against the removal or altering of information, such as certain data that identify
works or their authors, necessary for the management (e.g., licensing, collecting and distribution
of royalties) of their rights ("rights management information").

The Treaty obliges each Contracting Party to adopt, in accordance with its legal system, the
measures necessary to ensure the application of the Treaty. In particular, each Contracting Party
must ensure that enforcement procedures are available under its law so as to permit effective
action against any act of infringement of rights covered by the Treaty. Such action must include
expeditious remedies to prevent infringement as well as remedies that constitute a deterrent to
further infringement.
The Treaty establishes an Assembly of the Contracting Parties whose main task is to address
matters concerning the maintenance and development of the Treaty. It entrusts to the
Secretariat of WIPO the administrative tasks concerning the Treaty.

The Treaty was concluded in 1996 and entered into force in 2002.

The Treaty is open to States members of WIPO and to the European Community. The Assembly
constituted by the Treaty may decide to admit other intergovernmental organizations to become
party to the Treaty. Instruments of ratification or accession must be deposited with the Director
General of WIPO.

Sweat of the brow:

-skill

-labour

-investment

Modicum of creativity:

-minimum creativity

-judgement

-skill

Feint Publications vs. Rural telephonic services case.

Bleistein vs. Donaldson case.