Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works, signed in 1886 and last revised in Paris in 1971, is the founding treaty of international copyright law. Administered by WIPO, it brings together more than one hundred and eighty States and rests on three principles, national treatment, automatic protection without formality and independence of protection, supplemented by a floor of minimum rights that each State must guarantee to foreign authors.

The founding principles

National treatment requires each State of the Berne Union to grant authors from the other States the same protection as its own nationals. Protection arises without any formality, so that no deposit or registration may be made a condition of its existence or exercise. Independence of protection means that the enjoyment and exercise of rights in one State do not depend on the existence of protection in the country of origin, subject to the comparison of terms, which allows a State to limit protection to the term granted in the country of origin.

Minimum rights

The Convention imposes a minimum content of protection, applicable to foreign works even where national law is less generous towards its own authors. It guarantees the rights of reproduction, translation, adaptation, performance and broadcasting, a moral right of attribution and integrity, and a minimum term of fifty years after the author’s death. National exceptions to the reproduction right are framed by the three-step test, which confines them to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

Integration into the contemporary legal order

The TRIPS Agreement requires members of the World Trade Organization to comply with Articles 1 to 21 of the Convention, with the exception of moral rights, and thereby subjects its substantive provisions to WTO dispute settlement. The WIPO treaties of 1996 supplement it for the digital environment. In EU law, the Court of Justice interprets the copyright directives in the light of the Convention. Before the French courts, a foreign author may rely directly on the minimum rights.

The limits of the system

The Convention creates no international title and leaves in place as many national rights as there are States, governed by the principle of territoriality. It has no enforcement mechanism of its own, the constraint coming from the WTO through TRIPS. Its adaptation to digital uses relies on the interpretation of existing concepts, in the absence of any revision since 1971.

Key points

The Berne Convention guarantees foreign authors national treatment, protection without formality and a floor of minimum rights, including moral rights and a term of fifty years after death. It creates no single international right and each country applies its own law. For exploitation or litigation abroad, check that the State is a member, identify the applicable national law and rely on the minimum rights where that law is less protective.

---

This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

Intellectual property attorney · Tell us about your situation