International protection: Berne, the UCC, TRIPS and the WIPO Internet Treaties

1. Why international protection was needed

Copyright is territorial: a statute protects works only within its jurisdiction. Nineteenth century authors such as Dickens found their books freely reprinted in the United States. Bilateral treaties were the first response. The multilateral answer came with the Berne Convention.

2. The Berne Convention, 1886

The Berne Convention for the Protection of Literary and Artistic Works was concluded in 1886, pressed for by the Association Littéraire et Artistique Internationale, which Victor Hugo had helped found. It was revised at Berlin (1908), Rome (1928), Brussels (1948), Stockholm (1967) and Paris (1971), and is administered by WIPO. India has been a member since 1928.

Core principles

• National treatment (Article 5(1)): works originating in one member enjoy in every other member the rights its law grants to its own nationals, plus the rights the Convention specially grants.
• Automatic protection (Article 5(2)): enjoyment and exercise of rights are not subject to any formality.
• Independence of protection (Article 5(2)): protection does not depend on protection in the country of origin.
• Minimum standards: protected works (Article 2), moral rights (Article 6bis), minimum term of life plus fifty years (Article 7), and exclusive rights of translation, reproduction (Article 9, with the three-step test in Article 9(2)), public performance, broadcasting and adaptation.
• Exceptions: quotation (Article 10(1)), teaching (Article 10(2)), news (Article 10bis).

The Appendix and developing countries

The Stockholm Protocol of 1967 tried to give developing countries wide compulsory licences, and the dispute that followed nearly broke the Union. The Paris Act of 1971 settled it with the Appendix, which allows developing countries to grant compulsory licences for translation and reproduction for teaching and research under strict conditions. India implemented these in sections 32 and 32A in 1983. The procedures are so heavy that they have been little used.

3. The Universal Copyright Convention, 1952

The UCC was concluded at Geneva in 1952 under UNESCO and revised at Paris in 1971. It was a bridge for countries, chiefly the United States and Latin American states, that were unwilling to accept Berne’s ban on formalities and its higher standards.

• National treatment (Article II).
• Formalities (Article III): a country that requires formalities must treat them as satisfied if all copies bear the symbol © with the name of the owner and the year of first publication. This is the origin of the © notice.
• Term (Article IV): a minimum of life plus twenty-five years, lower than Berne.
• Berne safeguard clause (Article XVII and the Appendix Declaration): a Berne member could not leave Berne and rely on the UCC instead; works from such a country would not be protected under the UCC in Berne countries. The 1971 revision relaxed this for developing countries.

Why the UCC faded. The United States joined Berne in 1989, and TRIPS (1994) required all WTO members to comply with Berne’s substantive provisions. Since most UCC members are now Berne members and Berne prevails between them, the UCC has little practical effect today. India is a party to both.

4. Neighbouring rights treaties

The Rome Convention (1961), the Geneva Phonograms Convention (1971) against unauthorised duplication of records, and the Brussels Satellites Convention (1974) dealt with performers, producers and broadcasters. They are covered in the note on neighbouring rights.

5. TRIPS, 1994

The Agreement on Trade-Related Aspects of Intellectual Property Rights moved copyright into the trade system.

• Article 9(1): members must comply with Articles 1 to 21 of Berne and the Appendix, except the moral rights in Article 6bis. Article 9(2): protection extends to expressions, not ideas, procedures, methods of operation or mathematical concepts.
• Article 10: computer programmes protected as literary works; compilations of data protected if their selection or arrangement is an intellectual creation.
• Article 11: rental rights for programmes and films.
• Article 12: term for works not calculated on a life of fifty years from publication.
• Article 13: the three-step test, extended to all rights.
• Article 14: performers, phonogram producers and broadcasters.
• Part III (Articles 41 to 61): civil, provisional, border and criminal enforcement.
• National treatment and MFN (Articles 3 and 4), and disputes under the WTO Dispute Settlement Understanding.

What TRIPS added to Berne was enforcement and binding dispute settlement. Critics from the developing world argue that it locked in high standards set by exporting countries; the counter-argument is that it gave developing countries a predictable rule-based forum instead of unilateral trade pressure.

6. The WIPO Internet Treaties, 1996

WIPO Copyright Treaty (WCT). A special agreement under Article 20 of Berne. It protects computer programmes (Article 4) and databases (Article 5), and adds a distribution right (Article 6), rental right (Article 7), and the right of communication to the public including making available on demand (Article 8). Article 10 applies the three-step test, and an agreed statement allows exceptions to be extended into the digital environment. Articles 11 and 12 require protection against circumvention of technological measures and removal of rights management information.

WIPO Performances and Phonograms Treaty (WPPT). Equivalent rights for performers and phonogram producers, including moral rights for performers.

India implemented the substance in the 2012 amendment (sections 2(ff), 65A, 65B, 38A, 38B) and acceded to both treaties in 2018.

7. Treaties of the 2010s

• Beijing Treaty on Audiovisual Performances, 2012: protection of performers in films and other audiovisual fixations.
• Marrakesh Treaty, 2013, to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled. It requires exceptions for making accessible format copies and allows their cross-border exchange. India was the first country to ratify it, having already enacted section 52(1)(zb) in 2012.

8. How India gives effect to treaties: section 40

Section 40 lets the Central Government, by order, extend the Act to works first published in, or by nationals of, other countries. The International Copyright Order, 1999 extends protection to works from Berne, UCC and WTO countries, among others, with the term not exceeding that in the country of origin. Treaties are not self-executing in India; they take effect through such orders and amendments. The courts read the Act consistently with treaty obligations where possible, as in Gramophone Co. of India v. Birendra Bahadur Pandey, 1984 INSC 40.

How this is examined

For “international initiatives”, go through Berne, UCC, Rome, TRIPS, the WIPO Internet Treaties and Marrakesh in order, giving two or three principles for each and the Indian implementing provision. For the UCC short note, use section 3 and explain why it matters less today.