Protection of Copyright under Berne Convention and TRIPS Agreement

In the initial stages of the development of Copyright Law, remedies for infringement were only available to the citizens against other citizens within the same country, which means that copyright did not have extra-territorial jurisdiction. There were various rationales for the same, one of them arising out of the sentiments of nationalism, which reasoned that providing copyright protection to foreign authors would negatively impact the wealth of the nation. During the time, there was also immense pressure from interest groups who were benefitting from widespread copyright abuses, such as publishing works of authors like Charles Dickens without permission from or payment to the author. In addition, there was considerable variation in the standards of copyright protection available in different nations, which significantly restricted international trade.

However, this approach started to get reversed when the convergence of the general law on copyright began in the late nineteenth century These convergences included the following:

  1. Elimination of discrimination against foreign authors.
  2. Establishing minimum standards of protection.
  3. Steady increase in the scope, protection, and duration of the copyright.

Berne Convention for the Protection of Literary and Artistic Works

This convergence started to begin in the middle of the nineteenth century, mostly due to the signing of various bilateral treaties between nations. Many such treaties provided for mutual recognition of rights, but they tended to be neither comprehensive nor uniform. The need for a uniform system led to the formulation and adoption of the first treaty on copyright protection i.e., Berne Convention for the Protection of Literary and Artistic Works on September 9, 1886. The preamble of the Berne Convention lays down the purpose of the treaty, which is “to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works.” 

The convention is based upon three fundamental principles. It also contains a series of provisions determining the minimum standards of protection, as well as special provisions optionally available to developing countries.

These 3 basic principles are as follows:

I. National Treatment 

Many bilateral treaties concluded before the Berne Convention provided mutual protection to the works of citizens of the signatory nations in each other’s jurisdictions. This principle was known as the principle of reciprocity. The Berne Convention adopted this principle on a larger stage i.e., in a multilateral framework. Under this principle, the member states are under the obligation of providing equal treatment to the works of foreign nationals with the works of their own citizens. This played a pivotal part in doing away with the discrimination against the works of the foreign national.

II. Automatic and Independent Protection 

Protection of work is not conditional upon fulfillment of any mandatory registration or compliances. Hence, member countries cannot impose any administrative obligations for enforcement or continuation of copyright. The works of foreign nationals are protected in a member state even if such protection does not exist in the country where the work originated.

III. Minimum Standards of Protection (MSP)

The treaty provides for minimum coverage of protection, which must be provided for a minimum duration. This has the effect of laying down a uniform ideal for the threshold of protection. It also gives the member states the discretion to increase the coverage and duration of protection above the standards already prescribed. These protected rights include the right to translate, to make adaptations and arrangements, to perform or recite or communicate in public, to broadcast, to make reproductions including derivative works out of the original work, moral rights, etc. The minimum duration of such protection generally extends to 50 years after the death of the author, subject to various exceptions.

Limitations

One of the significant shortcomings of the Berne Convention was that there was no enforcement mechanism for effectively enforcing the binding obligations of the multilateral treaty. This absence of any mechanism rendered the treaty toothless. 

The treaty also provides for various controversial restrictions and exceptions. These are as follows:

  1. The free use of protected works in exceptional cases, also commonly known as “the three-step rule.” 
  2. Unauthorized use as an illustration or teaching purposes or for reproduction in newspaper or reporting current events or producing ephemeral recordings.
  3. Compulsory Licensing of the right of broadcasting and recording of musical works after some duration.
Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement

With the rapid development of new technologies in the 20th century, the proportion of goods and services in international trade consisting of intellectual property also increased dramatically. Even though various systems existed for the protection of intellectual property, there were many countries where the standard of protection was inadequate or inappropriate. Some developed nations provided for an unreasonably generous amount of protection which led to the creation of variance in the standards of protection across the nations.  It was also felt that previous international treaties were not very trade-specific.

It was soon realized by the international community that without proper and uniform intellectual property protection, there was a danger of distorting the international trade order. For these reasons, the TRIPS Agreement came into force on 1st January 1995.

TRIPS is a comprehensive treaty dealing with different kinds of intellectual property, but for present purposes, we limit our scope to only copyright. This agreement provides in unequivocal terms that the member states of WTO must comply with the substantial provisions of the Berne Convention ranging from Article 1 to 21, excluding Article 6bis. Article 9(1) of the treaty lays down that the member states are also required to comply with the Berne Convention in its whole even if they are not a party to it.

The principles laid down in TRIPS parallels with that of the Berne Convention, including principles of National Treatment, Minimum Standards of Protection, Automatic and Independent Protection, mandatory coverage, duration of protection, etc.

The TRIPS Agreement consolidated the existing treaties as well as introduced additional obligations in areas, which were not addressed in these conventions, or were thought not to be sufficiently addressed in them. Therefore, it is also sometimes referred to as a “Berne and Paris-plus” Agreement.

However, the most coveted achievement of the agreement is its dual enforcement mechanism as laid down under Article 41 to 49 and in the General Agreement of Trade and Tariffs (GATT). An aggrieved member state can go for WTO’s dispute resolution machinery set out in GATT over and above the machinery provided under the TRIPS Agreement. It also gives necessary and efficacy and teeth missing in Berne and Paris Conventions by subjecting the violations of these treaties to WTO’s dispute resolution mechanism.

Major differences 

The major differences between the Berne Convention and TRIPS are as follows:

1. Berne Convention deals with only copyright, whereas TRIPS is more encompassing and provides for comprehensive protection of IP rights in general.

2. The Berne Convention does not include provisions regarding computer programs or databases. In contrast, the TRIPS Agreement provides that “computer programs, whether in source or object code, will be protected as literary works under the Berne Convention”. It also expressly recognizes protections for databases and encyclopedias.

3. Moral rights are the indivisible rights of the creator upon his creation. These are non-assignable, and their protection is unlimited. Article 6bis of the Berne Convention provides for such moral rights, which include the right of recognition, right to integrity, and right of publication. However, the TRIPS agreement has expressly excluded such rights as they fall outside of its trade-centric purpose. 

4. The Berne Convention permits other countries to provide for a limited right of reproduction, 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. However, due to the existence of rental businesses that are predicated on private copying, this leads to a decrease in CD and record sales, and copyright holders are denied their proper benefits. Therefore, countries have recognized rental rights, which enable copyright holders to license the rental of their works and claim remuneration for this. The TRIPS Agreement obligates Members to establish rental rights, at least regarding computer programs and films.

Author: Rachit Taparia, 3rd year law student of Gujarat National Law University, Gandhinagar and Legal Intern at PA Legal. 

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