to section 302(c) of the United States Copyright Act, with the exception that the Convention's minimum term is 50 years from first publication or 100 years from creation. The minimum term of protection for works of applied art and photographs under Berne is 25 years from the making thereof. The minimum economic rights of authors specified in the Berne Convention are those familiar to students of the copyright laws of most countries of the world, including countries outside of the Berne Convention: the exclusive right of translation; the exclusive right of reproduction; the right of public performance or recitation (which in Berne is divided basically into two broad categories -- broadcasting and non-broadcasting public performances); the right of adaptation, that is, to authorize the adaptation, alteration or arrangement of works; and the right to record musical works. In addition to the specific minima, the Convention requires member states to accord national treatment to foreign works, thus prohibiting discrimination against foreign works and their authors. The Berne Convention does not contain express recognition of the right of public distribution, in the fashion of section 106(3) of the United States Copyright Law, nor of the right o: public display created by section 106(5) of the 1976 Copyright Act. The silence of the Convention on the right of public display probably reflects its relative novelty. The absence of specific rules as to the scope of distribution rights for all or certain works may reflect the variable practices of states. Some contend that the distribution right is part of the reproduction right. Uniform rules on these important areas of copyright law and practice apparently do not exist. As is the case with national copyright laws, the Berne Convention permits exceptions to exclusive rights. Berne permits exceptions permitting free quotations from publicly distributed works "providing that their making - 15 is compatible with fair practice and their extent does not exceed that justified by the purpose [Article 10(1)]; and, special exemptions .... favoring the reproduction of articles on "current economic, political, or religious topics" are permitted under certain circumstances. Union states are further allowed to "permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, providing such utilization is compatible with fair practice." [Article 10(2)]. And Union states are allowed, with respect to the exclusive right of reproduction, Article 9(2). to permit the reproduction of such works in special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. With respect to public performance rights other than broadcasting, and apart from specific exceptions such as Article 10(2) and 10bis, dramatic, dramatico-musical and musical works are accorded unqualified rights. However, "minor reservations" to non-broadcast public performances are tolerated among the states party to Berne, in accordance with a broad understanding reached during the Stockholm revision conference in 1967. In the important area of public performance by broadcasting, the Berne Convention establishes a comprehensive right applicable to traditional retransmission, rebroadcasting and public broadcasting, wire diffusion, communication of broadcasts. Unlike the case of non-broadcast public performances, however, the Berne Convention permits the application of compulsory licenses in the case of the broadcasting right. 16 The Berne Convention also contains provisions authorizing states to legislate exemptions permitting ephemeral recording, essentially similar to the system adopted in section 112 of the 1976 Copyright Act. With respect to the rights of authors of musical works to authorize the recording of their compositions, the compulsory license for making and distributing phonorecords of nondramatic musical works in the United States copyright law has long had its analog in the Berne Convention. The Berne Convention has a number of interesting provisions relating to copyright in cinematographic works. They are recent, having been adopted at the 1967 Stockholm Conference, and put into effect through the 1971 Paris Act. To oversimplify a rather complex subject, the relevant provisions of the Berne Convention attempt to define minimum rights and points of attachment for protection to cinematographic works with reference to the "author" of a film, while leaving to national legislation discretion to determine who such an author is. Apart from the economic rights of authors in their works and permissible limitations upon such rights, the Berne Convention also contains the provisions known as "moral rights" which encompass a variety of specific interests authors have with respect to public utilization of their works, more in the nature of artistic and professional integrity than pure commerciality. The recognition and progressive elaboration of the moral rights of the author is and has long been one of the most distinctive features of the Berne Convention. In fact, Article 6bis of the Convention does not necessarily exhaust the potential scope of so-called "moral rights" however as recognized in states party to the Berne Convention. Some states include the right to first publish a work as a moral rather than economic right, or recognize the - 17 author's right to object to unfair or excessive criticism of his or her work, or the right of an author to withdraw a work from circulation (subject to compensation of authorized distributors). The Convention does not elaborate on the important question of assignability or waivability of moral rights by specific agreement. The Convention establishes minimum obligations regarding protection of works in existence prior to the coming into force of the Convention, including works in the public domain. [Article 18]. This provision for retroactivity cuts two ways: it could affect protection for pre-existing United States works in other Berne countries, and restoration of protection for foreign works in the United States public domain for reasons other than expiration of the term of copyright. It should be noted that the Berne Convention contains a number of provisions applicable to the special needs of developing countries which largely duplicate provisions found in the Universal Copyright Convention. The Finally, with three exceptions, the Berne Convention does not allow for any reservations as to particular obligations. Under Article 30(1), "ratification or accession shall automatically entail acceptance of all the provisions and admission to all the advantages of [the] Convention." exceptions are: developing countries may make reservations in accordance with the Appendix (the special provisions regarding developing countries); a country may decline to admit the jurisdiction of the International Court of Justice; and a country may reserve, at least temporarily, the right to apply the ten year translation provision of the Additional Act of 1896. No other reservations are permitted. III. IMPLEMENTATION OF THE BERNE CONVENTION: A. Formalities. At least since 1908, the absence of "formalities" has been generally understood as one of the salient characteristics of the Berne Union. Nonetheless, many, but not all, Berne states do maintain provisions very similar to the United States' registration and recordation requirements. Even notice of copyright is retained for limited purposes in a few countries. The Copyright Office and the Library of Congress consider that the public benefits of our deposit, registration, and recordation provisions are clear, and that they can and should be retained essentially intact if the United States adheres to Berne. In the context of the Berne Convention, formalities are generally understood to be legal conditions which, if not fulfilled, affect the existence, scope of rights, or continuing validity of a copyright. Article 5(2) of the Berne Convention requires, as a minimum obligation for all member countries, that the "enjoyment and exercise of ... rights [in works protected under the Convention] shall not be subject to any formality." The laws and practices of Berne Countries that impose restrictions on the enforcement of rights and the Wipo's Guide to the Berne Convention support the view that the Berne Convention permits a distinction between those formalities whose observance constitutes a "condition procedural or judicial formalities. ... for the right to exist"15/ and Formalities that constitute a condition of copyright protection are forbidden; those of a procedural or judicial nature are not. 15. Wipo Guide at 33. 78-367 0 - 88 - 2 |