The Berne Convention for the Protection of Literary and Artistic Works, 1886

1. Background

In the nineteenth century a book published in one country could be freely reprinted in another, and authors such as Charles Dickens and Victor Hugo found pirated editions of their works sold abroad. Bilateral treaties gave patchy protection. The Association Littéraire et Artistique Internationale, founded under Victor Hugo’s presidency, pressed for a multilateral treaty. The Berne Convention was signed on 9 September 1886 by ten countries and set up the Berne Union.

Revisions: completed at Paris (1896), revised at Berlin (1908), completed at Berne (1914), revised at Rome (1928), Brussels (1948), Stockholm (1967) and Paris (1971), and amended in 1979. The Paris Act of 1971 is the operative text and contains the Appendix for developing countries. The Convention is administered by WIPO (see the IPR I note “The World Intellectual Property Organisation (WIPO)”).

India has been a member since 1928, when British India joined, and is bound by the Paris Act. Articles 1 to 21 of Berne (except the moral rights Article) are also incorporated into TRIPS by its Article 9, so they are enforceable through WTO dispute settlement.

2. The three basic principles

• National treatment (Article 5(1)). Works originating in one member State must be given in every other member State the same protection as that State gives to works of its own nationals.
• Automatic protection (Article 5(2)). The enjoyment and exercise of rights is not subject to any formality, such as registration, deposit or a copyright notice. This is why copyright arises in India without registration.
• Independence of protection (Article 5(2)). Protection in a member State does not depend on the existence of protection in the country of origin. The extent of protection and remedies are governed by the law of the country where protection is claimed. (A member may, however, limit the term to that of the country of origin: the “comparison of terms” in Article 7(8).)

Points of attachment (Article 3): a work is protected if its author is a national of, or habitually resident in, a member State, or if it was first published (or published within thirty days) in a member State.

3. Works protected

Article 2 covers “literary and artistic works”, meaning every production in the literary, scientific and artistic domain, whatever the mode or form of its expression: books and writings, lectures, dramatic and musical-dramatic works, choreographic works, musical compositions, cinematographic works, drawings, paintings, architecture, sculpture, engravings, photographs, applied art, maps and plans. Translations, adaptations and collections are protected as original works without prejudice to the underlying work. Members may require fixation, may decide how far to protect official texts and works of applied art, and news of the day and miscellaneous facts are not protected (Article 2(8)).

4. Minimum rights

Each member must grant at least these exclusive rights:

• translation (Article 8);
• reproduction in any manner or form (Article 9(1)), including sound and visual recordings;
• public performance of dramatic and musical works (Article 11);
• broadcasting and communication to the public (Article 11bis), with the possibility of compulsory licences for broadcasting on equitable remuneration;
• public recitation of literary works (Article 11ter);
• adaptation, arrangement and alteration (Article 12); and
• cinematographic adaptation and reproduction (Articles 14 and 14bis).

The resale right (droit de suite) in original works of art and manuscripts (Article 14ter) is optional and on reciprocity; India provides it in section 53A of the Copyright Act.

5. Moral rights: Article 6bis

Independently of the author’s economic rights, and even after their transfer, the author has the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work, which would be prejudicial to his honour or reputation. These rights last at least as long as the economic rights. India gives effect to this in section 57 of the Copyright Act.

6. Term of protection: Article 7

• The general term is the life of the author and fifty years after death.
• Cinematographic works: at least fifty years after the work is made available to the public, or after making if not made available.
• Anonymous and pseudonymous works: fifty years after being lawfully made available, unless the author’s identity becomes known.
• Photographs and works of applied art: at least twenty-five years from making.
• Members may grant longer terms; India grants sixty years.

7. Limitations and exceptions

• The three-step test (Article 9(2)): members may permit reproduction in certain special cases, provided it does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. TRIPS (Article 13) extends the test to all exclusive rights.
• Quotations compatible with fair practice, with source and author mentioned (Article 10(1)), and use by way of illustration for teaching (Article 10(2)).
• Reporting of current events and reproduction of articles on current economic, political or religious topics unless expressly reserved (Article 10bis).

These are the international basis for fair dealing in section 52 of the Copyright Act.

8. The Appendix for developing countries

The Stockholm revision of 1967 tried to meet developing countries’ demands through a Protocol that publishing countries refused to ratify. The Paris Act of 1971 replaced it with an Appendix: a developing country may, by declaration, provide for non-exclusive, non-transferable compulsory licences to translate works for teaching, scholarship or research, and to reproduce editions for systematic instructional activities, where the work is not available at a reasonable price after specified periods, subject to just compensation. India’s sections 32, 32A and 32B are drawn from it.

9. Administration and later treaties

The Berne Union has an Assembly and an Executive Committee; WIPO’s International Bureau provides the secretariat. Disputes may in principle go to the International Court of Justice (Article 33), but no case has been brought; in practice enforcement now runs through TRIPS. The WIPO Copyright Treaty, 1996, a special agreement under Article 20, adds protection for computer programs and databases, a distribution right, rental rights and protection of technological measures and rights management information. India acceded to it and to the WIPO Performances and Phonograms Treaty in 2018; the 2012 amendments to the Copyright Act (sections 65A and 65B) had already brought the law into line.

How this is examined

January 2026 asked “Explain salient features of Berne Convention” and February 2025 “Explain the provisions of Berne convention”, each for 10 marks. Follow the order above: background and revisions, the three principles, works, minimum rights, moral rights, term, the three-step test and the Appendix, and close with a paragraph linking each to the Copyright Act, 1957. That last paragraph covers the syllabus phrase about Indian law and is where most answers lose marks by omission.