Lecture
In March 1995 the Russian Federation acceded to the convention for the protection of literary and artistic works. The Berne Convention for the Protection of Literary and Artistic Works of 1886 is the oldest multilateral international convention and establishes a higher level of copyright protection than the Universal Convention. By the middle of the nineteenth century it had become definitively clear that national legislation alone could not ensure effective protection in the sphere of authors' rights. The third quarter of the nineteenth century was marked by heightened diplomatic activity in this direction. In particular, by the time the Berne Convention was signed in 1886, 33 bilateral agreements on the mutual protection of copyright had been concluded among 15 countries of Western Europe and America, and during the same period several international congresses on the subject were held. The experience thus accumulated was drawn upon in drafting the rules of the Berne agreement.
The agreement was initially signed by 10 states. It was subsequently revised many times, and the number of parties steadily grew. Russia took part in the work of the Berlin conference of the countries party to the Berne Convention in 1908 by sending observers. (It was precisely at this conference that the convention was completely revised and brought into a form close to the present one, and it was there that it received the official name still in use today — "the Berne Convention for the Protection of Literary and Artistic Works".)
Initially the framers of the Berne Convention, whose aim was to resolve the problems arising from conflicts between national legislations, based themselves on two fundamental principles:
the principle of assimilation, or national treatment (lex fori), that is, granting a foreigner rights to the extent determined for a state's own nationals;
the principle of a minimum scope of protection, implying the establishment of limits below which the level of protection of a foreigner's copyright may not fall.
In recognising protection, the framers of the original text of the convention proceeded from the territorial principle — protection was recognised for a work first published in the territory of a member state of the convention, irrespective of the author's nationality. (Such an approach was dictated by the "balance of forces" then existing between authors and publishers — the role of the latter was unjustifiably large.)
Subsequently (at the Brussels conference of 1948 and the Stockholm conference of 1967) this imbalance of interests was overcome, and at present there is a combination of two principles — the territorial and the national (the national principle being the granting of protection irrespective of the place of first publication, on the basis of the author's citizenship of or permanent residence in a member country).
An author may now count on protection if he:
is a national of one of the countries of the Berne Convention or has his habitual residence there (with respect to both published and unpublished works), Art. 3, paras. 1 and 2;
if, although not being a national of a convention country, he first publishes his work (or publishes it simultaneously — i.e. within 30 days) in one of the convention countries (Art. 3, para. 1).
The principle of assimilation has also undergone certain changes, and two categories of protection of rights are now provided for:
National treatment in the country of origin.
In the countries of the Berne Union other than the country of origin, national treatment is granted plus the rights "specially granted by the convention" (jus conventionis).
Thus, in the convention countries a foreign work may in a number of cases enjoy even greater rights to protection than works for which the given state is recognised as the country of origin.
Another principle developed in the course of the convention's evolution is the principle of "automatic protection", according to which the protection granted to a work must not be conditional upon the completion of any formalities.
The minimum mandatory term of copyright protection provided for by the convention, calculated from the day of the author's death (post mortem auctoris), has also tended to increase and at present amounts to 50 years (compared with 10 in 1886). At the Stockholm conference the representatives of certain countries (the FRG, Italy) proposed establishing a longer term, but this proposal was not supported.
At the conference in Stockholm in 1967 a Protocol Regarding Developing Countries was adopted, the provisions of which were to become an integral part of the Berne Convention. The Protocol provided for a certain reduction in the level of copyright protection for developing countries acceding to the convention. In substantive terms, the Protocol's innovations concerned the terms of copyright protection and the area of rights of translation and broadcasting. It should be noted that a number of developed countries party to the Berne Convention (16 out of the 51 participants in the conference) refused to sign the Stockholm text, considering such a reduction in the level of protection unacceptable. The resulting contradictions were partly overcome in 1971 at the Paris conference, where the protocol regarding developing countries was replaced by an appendix which, in accordance with Art. 21 of the convention, forms an integral part of it.
In accordance with Article 20 of the convention, the member countries reserve the right to enter into special agreements among themselves granting authors more extensive rights. In this connection a whole series of international agreements has been concluded regulating copyright for special kinds of works (phonograms — Rome 1961 and Geneva 1971; programme-carrying signals transmitted by satellite — Brussels 1974, and others). Such agreements regulating copyright in the sphere of computer programs will be examined in the next section.
Historically the Berne Convention covered above all the states of the Old World. At the same time, similar processes were under way on the American continent, expressed in the holding of intergovernmental conferences to prepare and sign an analogous pan-American agreement. After the Second World War the question arose of a more intensive integration of the American states into a single international system of copyright protection. This concerned above all the USA, with its enormous domestic market and vast production capacity. The Americans, on the one hand, were dissatisfied with the losses they incurred as a result of the absence of legal protection outside the USA for works first published in their territory. On the other hand, the USA was not ready to accede to the Berne Convention, above all because the level of copyright protection under the convention was too high compared with their domestic legislation.
In addition, it should be noted that participation in the Berne Convention by states of the common law system (Common Law) may be complicated by certain specific features of that legal system. In particular, the common law does not recognise the division of an author's rights into moral rights and economic rights. The recognition by the Rome conference in 1928 of the author's moral rights, which he retains even upon the transfer of his economic rights, initially provoked an objection from the English delegation, which feared the need to introduce corresponding changes into national legislation. The objections were withdrawn only after special assurances that no such changes would be necessary.
In the late forties and early fifties the USA, making use of the UNESCO machinery, began to make active attempts to create a new global international convention characterised by a lower level of protection of rights than the Berne Convention. This idea was supported by a number of other states, above all among the developing countries, which were not ready to accede to the Berne Convention because of its high level of protection.
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