The Berne Convention revisions for limitations and exceptions to copyright

The Berne Convention revisions for limitations and exceptions to copyright
2012:1 KEI Research Note
August 2012. Revised June 18, 2017.

This research note reports on the evolution of each copyright exception found in the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) from the original version through each of the eight revisions.

Table of Contents

I. The text of revisions of the Berne Convention
II. Notes on the evolution of exceptions (revised Aug 10)

  1. News reporting
  2. The Article 2bis power to exclude certain works from protection, including speeches, addresses and lectures
  3. The quotation right
  4. Teaching
  5. Legal Texts
  6. Developing country protocols
  7. Exceptions to the reproduction right (the 3-step test)
  8. Compulsory licensing for music
  9. Translations
  10. The 11bis broadcasting exceptions
  11. The minor exceptions doctrine

Concluding comments on exceptions

III. Governance

  1. Amending the Berne
  2. The 1979 Amendments

IV. Relationship to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights

  1. Reference to Berne in the TRIPS
  2. Special TRIPS flexibilities
  3. WTO Dispute over Section 110(5) of the US copyright law, the Berne Minor Exceptions Doctrine, and TRIPS Article 13
  4. Least Developed Countries

V. Years between revision or amendment

I. The text of each revision the Berne Convention*.

For reference, the following are the text of the original 1886 Berne Convention, and each subsequent revision.

  • 1886 Berne Convention: Convention Concerning the Creation of An International Union for the Protection of Literary and Artistic Works (PDF)
  • 1896 Paris Additional Act and Interpretative Declaration: Additional Act Amending Articles 2,3,5,7,12, and 20, of the Convention of September 9, 1886, and Numbers 1 and 4 of the Final Protocol Annexed thereto. Declaration Interpreting Certain Provisions of the Berne Convention of September 9, 1886, and the Additional Act Signed in Paris on May 4, 1896 (PDF)
  • 1908 Berlin Act: Revised Berne Convention for the Protection of Literary and Artistic Works (PDF)
  • 1914 Berne Additional Protocol: Additional Protocol to the Revised Berne Convention of November 13, 1908 (PDF)
  • 1928 Rome Act: Revised International Convention for the Protection of Literary and Artistic Works (PDF)
  • 1948 Brussels Act: Revised International Convention for the Protection of Literary and Artistic Works (PDF)
  • 1967 Stockholm Act: Revised International Convention for the Protection of Literary and Artistic Works, including the Protocol Regarding Developing Countries (PDF)
    • Separately, see 1967 Stockholm Revision of the Berne Convention Protocol Regarding Developing Countries. (html, PDF)
  • 1971 Paris revisions to Berne Convention (PDF)
  • 1979 Amended version of Berne Convention (html, PDF)

II. Notes on the evolution of exceptions

1. News reporting

In the original 1886 Berne Convention, article 7 sets out a mandatory presumptive royalty-free right to reproduce “Articles from newspapers or periodicals . . . in original or translation” in “any of the countries of the Union. . . unless the authors or publishers have expressly forbidden it.” There is also a stronger mandatory exception for “articles of political discussion, or to the reproduction of news of the day or miscellaneous information.”

1886 Article 7

Articles from newspapers or periodicals published in any of the countries of the Union may be reproduced in original or in translation in the other countries of the Union, unless the authors or publishers have expressly forbidden it. For periodicals it shall be sufficient if the prohibition is indicated in general terms at the beginning of each number of the periodical. This prohibition cannot in any case apply to articles of political discussion, or to the reproduction of news of the day or miscellaneous information.

The 1896, Article 7 was amended, to provide an exclusion for “serial stories and tales.”

1896 Amendment to Article 7

Serial stories, including tales, published in the newspapers or periodicals of one of the countries of the Union, may not be reproduced, in original or translation, in the other countries, without the sanction of the authors or of their lawful representatives.

This stipulation shall apply equally to other articles in newspapers or periodicals, when the authors or editors shall have expressly declared in the newspaper or periodical itself in which they shall have been published that reproduction is forbidden. In the case of periodicals it shall be sufficient if such prohibition is indicated in general terms at the beginning of each number. In the absence of prohibition, such articles may be reproduced on condition that the source is indicated.

The prohibition cannot in any case apply to articles of political discussion, to news of the day, or to miscellaneous information.

The 1908 revision of the Berne continued the practice of a mandatory exclusion of protection for “news of the day,” and of providing that, except for “serial stories and tales . . any newspaper article may be reproduced by another newspaper” unless the reproduction is “expressly forbidden.”

1908 Berlin Act, Article 9

Serial stories, tales, and all other works, whether literary, scientific, or artistic, whatever their object, published in the newspapers or periodicals of one of the countries of the Union may not be reproduced in the other countries without the consent of the authors.

With the exception of serial stories and tales, any newspaper article may be reproduced by another newspaper unless the reproduction thereof is expressly forbidden. Nevertheless, the source must be indicated; the legal consequences of the breach of this obligation shall be determined by the laws of the country where protection is claimed.

The protection of the present Convention shall not apply to news of the day or to miscellaneous information which is simply of the nature of items of news.

The 1928 revision modified 9(2) to require indication of the source of articles that were used without express authorization under the exception, and retained the mandatory exclusion of protection for “news of the day or to miscellaneous information which is simply of the nature of items of news.”

1928 Article 9

(1) Serial stories, tales, and all other works, whether literary, scientific, or artistic, whatever their object, published in the newspapers or periodicals of one of the countries of the Union may not be reproduced in the other countries without the consent of the authors.

(2) Articles on current economic, political or religious topics may be reproduced by the press unless the reproduction thereof is expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of the breach of this obligation shall be determined by the laws of the country where protection is claimed.

(3) The protection of the present Convention shall not apply to news of the day or to miscellaneous information which is simply of the nature of items of news.

There were some minor changes in Article 9 in the 1948 revisions of the Berne. “Serial stories, tales” became “Serial novels, short stories” in (1). Puncuation was changed in (2), and in (3), “miscellaneous information which is simply of the nature of items of news” became “miscellaneous information having the character of mere items of news.”

1948 Article 9

(1) Serial novels, short stories, and all other works, whether literary, scientific or artistic, whatever their purpose, and which are published in the newspapers or periodicals of one of the countries of the Union shall not be reproduced in the other countries without the consent of the authors.

(2) Articles on current economic, political or religious topics may be reproduced by the press unless the reproduction thereof is expressly reserved; nevertheless, the source must always be clearly indicated. The legal consequences of the breach of this obligation shall be determined by the laws of the country where protection is claimed.

(3) The protection of this Convention shall not apply to news of the day nor to miscellaneous information having the character of mere items of news.

The 1948 revision also added a new Article 10bis.

1948 Article 10bis
It shall be a matter for legislation in countries of the Union to determine the conditions under which recording, reproduction and public communication of short extracts from literary and artistic works may be made for the purpose of reporting current events by means of photography, cinematography or by radio-diffusion.

In the 1967 revision, there was an extensive debate about the exceptions for news reporting, focusing on the exception for republishing news reports in Article 9, and exclusion of facts and “news of the day” from protection, and types of exceptions that are necessary to report the news.[[1]]

An excerpt from a 1965 report of Study Group (available here) made this observation about the 1948 revision exception for republishing news stories:

Paragraph 2, in its present wording, provides, in favour of the press, a right freely to reproduce articles on current economic, political or religious topics, unless their reproduction is expressly reserved.

In its 1963 report, the Study group proposed deleting this Article for the following reasons:

The International Federation of Journalists has, in the course of recent years, adopted several resolutions expressing the desire for the abolition of this provision.

The Study Group supports this desire. It is possible that, in the more remote past, there was a certain need to reproduce entire articles of this kind, without permission of the author, this need being experienced particularly by small newspapers. On the other hand, at the present time; it is hardly compatible with the moral principles recognized by the press to reproduce an article published in another newspaper without having first obtained permission of the author. It is true that in the interest of the discussion that takes place in the press on public affairs and other questions, there is a need to report such articles freely, and to a fairly general extent. . . In cases where there is a genuine need for literal reproduction, means for so doing should be provided, but within the framework of the right of quotation.

The Study Group proposed moving the exception that precludes protection for “news of the day or miscellaneous information, provided such articles have the character of simple press information” to a new last paragraph of Article 2 of the Convention, where the Berne defines the works to be protected.

As regards utilizing protected works in the reporting of current events, the Study Group wanted several other changes, including expanding its application in terms of technologies and purposes, and eliminating reference to “short extracts” in favor of “the extent justified by the informatory purpose.”

The Study Group recommendations were implemented in a new paragraph Article 2(8), and an expanded and revised Article 10bis.

One additional consequence of the changes were to make the exclusion of “news of the day” and “miscellaneous facts having the character of mere items of press information” mandatory.

1967 Article 2(8)

(8) The protection of this Convention shall not apply to news of the day nor to miscellaneous facts having the character of mere items of press information.

The remaining elements of the exception were permissive, and extended to accommodate the role of radio, television and magazines with photographs in providing communications about “current economic, political or religious topics” and “current events.”

1967 Article 10bis

(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

Note that unlike the exceptions for quotations and teaching in Article 10, the news reporting exceptions in Articles 2(8) and 10bis were not based upon a fair practice standard, and only paragraph 10bis (2) was limited “to the extent justified by the informatory purpose.”

2. The Article 2bis power to exclude certain works from protection, including speeches, addresses and lectures

New in the 1928 revisions was an Article 2bis, on the power to exclude certain works from protection. This article was amended also in 1948 and 1967.

1928 version of Article 2bis

(1) The right of partially or wholly excluding political speeches and speeches delivered in legal proceedings from the protection provided by the preceding Article is reserved for the domestic legislation of each country of the Union.

(2) The right of fixing the conditions under which lectures, addresses, sermons and other works of the same nature may be reproduced by the press is also reserved for the domestic legislation of each country of the Union. Nevertheless, the author shall have the sole right of making a collection of the said works.

The 1948 revisions changed the style but not the substance of the exceptions.

1948 version of Article 2bis

(1) It shall be a matter for legislation in countries of the Union to exclude wholly or in part from the protection afforded by the preceding Article political speeches and speeches delivered in the course of legal proceedings.

(2) It shall also be a matter for legislation in countries of the Union to determine the conditions under which lectures, addresses, sermons and other works of the same nature may be reproduced by the press.

(3) Nevertheless, the author alone shall have the right of making a collection of his works mentioned in the above paragraphs.

The 1967 revisions dropped the 2bis(2) reference to sermons, and “may be reproduced by the press” was expanded to say “may be reproduced by the press, broadcast, communicated to the public by wire and made the subject of public communication as envisaged in Article 11bis(1) of this Convention, when such use is justified by the informatory purpose.”

1967 version of Article 2bis

(1) It shall be a matter for legislation in the countries of the Union to exclude, wholly or in part, from the protection provided by the preceding Article political speeches and speeches delivered in the course of legal proceedings.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which lectures, addresses and other works of the same nature which are delivered in public may be reproduced by the press, broadcast, communicated to the public by wire and made the subject of public communication as envisaged in Article 11bis(1) of this Convention, when such use is justified by the informatory purpose.

(3) Nevertheless, the author shall enjoy the exclusive right of making a collection of his works mentioned in the preceding paragraphs.

3. The quotation right

Every version of the Berne, including the original 1886 version and all subsequent revisions, included language on the exception for quotations. The quotation right has evolved over time, first as something that was optional, and later as a mandatory exception. In 1886, the Berne deferred to national legislation on the flexability for “extracting portions” from works “for use in publications destined for educational or scientific purposes, or for chrestomathies“.

1886 Article 8
As regards the liberty of extracting portions from literary or artistic works for use in publications destined for educational or scientific purposes, or for chrestomathies, the effect of the legislation of the countries of the Union, and of special arrangements existing or to be concluded between them, is not affected by the present Convention.

In 1908, the quotation exception, still permissive, was modified slightly, replacing ” educational or scientific purposes” with “educational purposes, or having a scientific character.”

1908 Article 10

As regards the liberty of extracting portions from literary or artistic works for use in publications destined for educational purposes, or having a scientific character, or for chrestomathies, the effect of the legislation of the countries of the Union and of special Arrangements existing or to be concluded between them is not affected by the present Convention.

This language was repeated in the 1928 revision of the Berne, with minor punctuation changes.

In 1948, there was a substantial rewriting of the quotation right, making the exception mandatory for “short quotations from newspaper articles and periodicals,” and permissive for “excerpts of literary or artistic works in educational or scientific publications, or in chrestomathies, in so far as this inclusion is justified by its purpose.” The 1948 revisions also introduced an obligation for “an acknowledgement of the source and by the name of the author.”

The following is from the General Report of the 1948 diplomatic conference:

The question of borrowings from known works has always been a source of abuses; moreover it is very difficult to bridle the right of quotation which, without actually affording evidence of culture, remains a habit of writers who in addition are cultured persons.

The French Delegation proposed an explicit text which provided for a sort of lawful borrowing licence. In order to avoid disturbing established practices, it has had to show more moderation and content itself with some substantial drafting amendments.

Thus short quotations from newspaper articles and periodicals are lawful.

The right to take excerpts from literary and artistic works for teaching or for chrestomathies is a matter for legislation in the countries of the Union.

The actual permission given by the second paragraph is broader than the mere tolerance in the first; it is justified by the purpose of the borrowing, which is for an educational or scientific work or a chrestomathy.

Finally, quotations are always accompanied by an acknowledgement of the source and by the name of the author. The wording of Article 10 adopted at Brussels will reconcile the rights of authors with the needs of a public eager to draw on the treasures of human knowledge.

The text of the 1948 revision of Article 10 was:

1948 Article 10

(1) It shall be permissible in all countries of the Union to make short quotations from newspaper articles and periodicals, as well as to include them in press summaries.

(2) The right to include excerpts of literary or artistic works in educational or scientific publications, or in chrestomathies, in so far as this inclusion is justified by its purpose, shall be a matter for legislation in the countries of the Union, and for special arrangements existing or to be concluded between them.

(3) Quotations and excerpts shall be accompanied by an acknowledgement of the source and by the name of the author, if his name appears thereon.

In 1967, there was another significant change in the quotation right, significantly broadening the use of quotation to any use “provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose.” The 1967 revision of the Berne was the first to introduce a reference to “fair practice,” and, after a debate, the reference to “short” was dropped.

The 1967 revision was influenced by a 1965 report from a Committee of Government Experts, as part of the Swedish/BIRPI study group. The 1965 report makes it clear that the quotation right should be expanded as to subject matter. The previous exception was “too restrictive,.” As regards the length of the quotation:

It is true that, normally, a quotation should be short, but this principle does not have absolutely universal validity. . . . Sufficient direction in these various fields cannot be achieved unless it is is possible to reproduce, in certain cases, fairly considerably portions of articles which constitute the contributions of other newspapers to public discussion. . . . In other cases, a fairly extensive quotation may be necessary as the point of departure for a reply. A satisfactory delimitation could be reached by modelling the text upon rules generally accepted and developed in this field, and in emphasizing the principle that the right of quotation can only be exercised to the extent justified by the purpose.

For the reasons set out, the Study Group proposes that restrictions on the right of quotation permitted in the existing text by the rule which only permits “short” quotations should be replaced by a provisions stipulating that quotations are permitted, provided they are compatible with fair practice, and to the extend justified by the purpose.”

As regards the types of uses of quotations, the Study Group said:

Interpreted literally, the existing provision only relates to quotations from newspaper articles, but in actual fact it is applied, by analogy, to quotations from other works. The Study group proposes that the field of universal application should be covered expressis verbis. . . . it is generally recognized in the field of science that a right exists of quoting from theses, books, etc., which, in conformity with certain principles, should be considered as lawful from the point of view of copyright.

The Study Group noted that “generally speaking, it was practically impossible to indicate satisfactorily all of the purposes by which quotations must be justified.”

An excerpt from the 1965 report is available here.

In the 1967 revision, the quotation right was thus liberalized and restated, and made a mandatory obligation in the Berne.

1967 Article 10(1,3)

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.

Subsequent revisions did not change in the quotation right.

4. Teaching

Until 1967, there was no provision in the Berne specifically dealing with exceptions for teaching or education, other than the early versions of the quotation right that were initially limited to education of scientific publications.

In the 1967 revision, Article 10 was expanded to include a permissive exception “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, provided such utilization is compatible with fair practice.”

The two Article 10 exceptions, for quotations and for teaching, both have as their standard, “fair practice” and are limited to the extent “justified by the purpose.” Note that the 1967 revision was accompanied by the protocol regarding developing countries.

1967 Article 10 (2,3)

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, 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, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.

5. Legal Texts

In the 1948 revision, a permissive exception was added for “translations of official texts of a legislative, administrative and legal nature.”

1948 Article 2(2)
. . . It shall, however, be a matter for legislation in Countries of the Union to determine the protection to be granted to translations of official texts of a legislative, administrative and legal nature.

In 1967, the exception was expanded to include both the official texts and the official translations.

1967 Article 2(4)
(4) It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.

6. Developing country protocols

The 1967 revision including a protocol for developing countries. The text of the protocol is available here: (html). Additional commentary available here)

The debate on the 1967 revision took place from 1958 to 1967, and was very contentious. A timeline of the negotiation is available here. A 1965 report on the negotiations for this protocol is available here.

What did the 1967 Protocol do?

As a bid to encourage newly independent developing countries to join the Berne Convention, a protocol was approved that provided for much greater access to copyrighted works than the earlier 1948 revision of the Berne Convention. Among the changes are the following:

Article 1(a). (Minimum copyright term shortened to 10 years for photographs, 25 years for other works)

  • substitute for the term of fifty years referred to in paragraphs (1), (2) and (3) of Article 7 of this Convention a different term, provided that it shall not be less than twenty-five years; and substitute for the term of twenty-five years referred to in paragraph (4) of the said Article a different term, provided that it shall not be less than ten years;

Article 1(b) (Translations: 10 year rule for translations, compulsory license possible after 3 years)

  • The exclusive right of translation shall cease to exist if the author shall not have availed himself of it, during a term of ten years from the date of the first publication of the original work, by publishing or causing to be published, in one of the countries of the Union, a translation in the language for which protection is to be claimed
  • After the expiration of a period of three years from the date of the first publication of a literary or artistic work, or of any longer period determined by national legislation of the developing country concerned, a translation of such work has not been published in that country into the national or official or regional language or languages of that country by the owner of the right of translation or with his authorization, any national of such country may obtain a non-exclusive license from the competent authority to translate the work and publish the work so translated in any of the national or official or regional languages in which it has not been published

Article 1(c) (Compulsory license after 3 years for educational or cultural purposes)

  • If, after the expiration of a period of three years from the date of the first publication of a literary or artistic work, or of any longer period determined by national legislation of the developing country concerned, such work has not been published in that country in the original form in which it was created, by the owner of the right of reproduction or with his authorization, any national of such country may obtain non-exclusive license from the competent authority to reproduce and publish such work for educational or cultural purposes;

Article 1(d) (limit broadcast rights to “profit-making purposes, provide for compulsory licensing )

  • authors of literary and artistic works shall enjoy the exclusive right of authorizing the broadcasting of their works and the communication to the public of the broadcast of the works if such communication is made for profit-making purposes;
  • the national legislations of the countries of the Union may regulate the conditions under which the right mentioned in the preceding subparagraph shall be exercised. . . . Such conditions shall not in any case prejudice the moral rights of the author, nor the right which belongs to the author to obtain an equitable remuneration which shall be fixed, failing agreement, by the competent authority;

Article 1(e) (Broad exceptions for teaching, study and research in all fields of education, subject to compensation to the author. Cross border import and export of works under similar exceptions permitted.)

  • reserve the right, exclusively for teaching, study and research in all fields of education, to restrict the protection of literary and artistic works, provided due provision shall be made by domestic legislation to assure to the author a compensation which conforms to standards of payment made to national authors;
  • Copies of a work published pursuant to reservations under this paragraph may be imported and sold in another country of the Union for purposes as aforesaid if that country has invoked the said reservations and does not prohibit such importation and sale.

The 1971 revision eliminated the 1967 protocol, and adopted a new Appendix for Developing Countries. The text of the 1971 Appendix is here. The 1971 Appendix has been widely criticized for its complex and burdensome procedures, and is rarely used.

For background on the negotiations, including the Appendix, see the following excerpts from the records of the 1971 diplomatic conference:

7. Exceptions to the reproduction right (the 3-step test)

The three step test made its debut in the Berne in 1967, as Article 9(2), for exceptions to the new right of reproduction.

1967 Article 9
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain 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.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Some right-holder lobby groups argue the 3-step test was binding on all other Berne exceptions. Others say the application of the 3-step test is a general provision that can be used in cases where a particular exception is not provided. The following is from the preparatory work for the 1967 revisions:

Account must be taken of the other provisions in the Convention. This implies that the provisions already existing in certain special purposes (Articles 10, 10bis and 11bis, paragraph (3)) must be regarded as rules exercising limits on the questions with which they deal. Thus, the special conditions, whose presence these exceptions imply, must always be respected. . . . Furthermore . . . It follows, therefore, from this reservation that the new provision places no restriction on the right granted to countries of the Union, under Article 13, to institute a compulsory license to the right to record musical works. Records of the Stockholm Conference, 1967, Vol 1, page 112

See also footnotes 1 and 2 on page 112 of the Records of the Stockholm Conference, 1967, Volume 1.

fn1. The exceptions most frequently recognized in domestic law seem to relate to the following works or methods of use: (1) public speeches; (2) quotations; (3) school books and chrestomathies; (4) newspaper articles; (5) reporting current events; (6) ephemeral recordings; (7) private use; (8) reproduction by photocopying in libraries; (9) reproduction in special characters for the use of the blind; (10) sound recordings of literary works for the use of the blind; (11) texts of songs; (12) sculpures on permanent display in public places, etc; (13) artistic works used as a background in films and television programmes; (14) reproduction in the interests of public saftey. The present text of the Convention contains provisions relating to exceptions (1) to (6) (it is proposed, below, to delete exception (4)).

fn2. The Study Group remarked that another solution to the problem under discusion would be, of course, to indicate the exceptions in the text of the Convention by means of a list intended to be restrictive. However, after a lenghty discussion, the Study Group came to the conclusion that this solution not be adopted. On the one hand, a list of this kind — event if it were to be limited to the main exceptions — would be very long and would in fact considerly restrict the authors’ rights. At the present time, most countries recognize only some of the exceptions permitted by certain of these rules of exceptions indicated above — these vary from one country to another — or else they grant remuneration to the authors for the use permitted by certain of these rules of exception, as in the case of the Nordic countries. There is every reason to fear that the introduction of a list of this kind would encourage the adoption of all of the exceptions allowed and abolish the right of remuneration. On the other hand, a list, however long, would be inadequate, because it could never cover all of the special cases existing in national legislation.

8. Compulsory licensing for music

The exception for compulsory licensing of musical works was created in 1908, and later modified in 1948 and 1967. The 1908 version permitted “reservations and conditions” on the exclusive right of authorizing the use of musical works “to instruments which can reproduce them mechanically” and to “public performance of the said works by means of these instruments.”

1908 – Article 13

The authors of musical works shall have the exclusive right of authorizing: (1) the adaptation of those works to instruments which can reproduce them mechanically; (2) the public performance of the said works by means of these instruments.

Reservations and conditions relating to the application of this Article may be determined by the domestic legislation of each country in so far as it is concerned; but the effect of any such reservations and conditions will be strictly limited to the country which has put them in force. The provisions of paragraph 1 shall not be retroactive, and consequently shall not be applicable in any country of the Union to works which have been lawfully adapted in that country to mechanical instruments before the coming into force of the present Convention.

Adaptations made in virtue of paragraphs 2 and 3 of the present Article, and imported without the authority of the interested parties into a country where they would not be lawful, shall be liable to seizure in that country.

The 1928 revision of carried forward the 1908 provisions.

The 1948 revision added a provisions that “reservations and conditions” for musical works “shall not, in any circumstances, be prejudicial to the author’s right to obtain just remuneration.”

1948 Article 13(1,2)

(1) Authors of musical works shall have the exclusive right of authorizing: (i) the recording of such works by instruments capable of reproducing them mechanically; (ii) the public performance of works thus recorded by means of such instruments.

(2) Reservations and conditions relating to the application of the rights mentioned in the preceding paragraph may be determined by legislation in each country of the Union, in so far as it may be concerned; but all such reservations and conditions shall apply only in the countries which have prescribed them and shall not, in any circumstances, be prejudicial to the author’s right to obtain just remuneration which, in the absence of agreement, shall be fixed by competent authority.

The 1967 revision was expressed as follows:

1967 Article 13(1)

(1) Each country of the Union may impose for itself reservations and conditions on the exclusive right granted to the author of a musical work and to the author of any words, the recording of which together with the musical work has already been authorized by the latter, to authorize the sound recording of that musical work, together with such words, if any; but all such reservations and conditions shall apply only in the countries which have imposed them and shall not, in any circumstances, be prejudicial to the rights of these authors to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

9. Translations
In the original 1886 version of the Berne provided only 10 years of exclusive rights for translations of works.

1886 Article 5
Authors who are subjects or citizens of any of the countries of the Union, or their lawful representatives, shall enjoy in the other countries the exclusive right of making or authorizing the translation of their works until the expiration of ten years from the publication of the original work in one of the countries of the Union. For works published in incomplete parts (livraisons) the period of ten years shall commence from the date of publication of the last part of the original work. For works composed of several volumes published at intervals, as well as for bulletins or collections (cahiers) published by literary or scientific societies, or by private persons, each volume, bulletin, or collection shall be, with regard to the period of ten years, considered as a separate work. In the cases provided for by the present Article, and for the calculation of the terms of protection, the 31st December of the year in which the work was published shall be regarded as the date of publication.

This was referred to as “the ten year regime,” and it was eliminated in the 1908 revision, which gave the author the exclusive right of translation for the entire term of protection. According to Alberto Cerda, “That clause was in the original Berne Convention, apparently in order to encourage the accessing to the Convention by some peripheral European countries, mainly Scandinavians. Later, once those countries became parties, that provision disappeared.” (email communication, 9 August 2012.)

In 1928, the 1886 “ten year regime” was offered as an option, not for existing Berne members, but for countries joining the Union,” and those new members, only for “translation into the language or languages of that country.”

1928 Article 25(3)

(3) Such accession shall imply full acceptance of all the clauses and admission to all the advantages provided by the present Convention, and shall take effect one month after the date of the notification made by the Government of the Swiss Confederation to the other unionist countries, unless some later date has been indicated by the acceding country. It may, nevertheless, contain an indication that the acceding country wishes to substitute, provisionally at least, for Article 8, which relates to translations, the provisions of Article 5 of the Convention of 1886 revised at Paris in 1896, on the understanding that those provisions shall apply only to translations into the language or languages of that country.

Article 25(3) was repeated in the 1948 revision.

The 1967 revision also included the ten year option for translations.

1967 Article 30
(b) Any country outside the Union may, in acceding to this Act, declare that it intends to substitute, temporarily at least, for Article 8 concerning the right of translation, the provisions of Article 5 of the Union Convention of 1886, as revised in Paris in 1896, on the clear understanding that the said provisions are applicable only to translation into the language or languages of the said country. Any country of the Union has the right to apply, in relation to the right of translation of works whose country of origin is a country availing itself of such a reservation, a protection which is equivalent to the protection granted by the latter country.

The 1967 revision also included an lengthy Protocol Regarding Developing Countries (/node/985) which include extensive provisions regarding exceptions for translations of works.

In 1971, the 1967 Protocol Regarding Developing Countries was eliminated and replaced with a new Appendix on Special Provisions Regarding Developing Countries, which also includes extensive but complicated provisions regarding exceptions for translations of works.

The 1971 and 1979 revisions continued to make available the possibility of the “ten year regime” for translations, but now “subject to Article V(2) of the Appendix,” which requires a choice between the provisions in the Appendix and the ten year regime.

1971 Article 30 (2)(b)
(b) Any country outside the Union may declare, in acceding to this Convention and subject to Article V(2) of the Appendix, that it intends to substitute, temporarily at least, for Article 8 of this Act concerning the right of translation, the provisions of Article 5 of the Union Convention of 1886, as completed at Paris in 1896, on the clear understanding that the said provisions are applicable only to translations into a language in general use in the said country. Subject to Article I(6)(b) of the Appendix, any country has the right to apply, in relation to the right of translation of works whose country of origin is a country availing itself of such a reservation, a protection which is equivalent to the protection by the latter country.

10. The 11bis broadcasting exceptions

In 1928, the Berne adopted an “exclusive right of authorizing the communication of their works to the public by radio-diffusion” in Article 11bis(1). In 11bis(2), an exception was created, to allow governments to “regulate the conditions under which the right mentioned in the preceding paragraph shall be exercised.”

1928 Article 11bis
(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radio-diffusion.
(2) The national legislations of the countries of the Union may regulate the conditions under which the right mentioned in the preceding paragraph shall be exercised, but the effect of those conditions will be strictly limited to the countries which have put them in force. Such conditions shall not in any case prejudice the moral right (droit moral) of the author, nor the right which belongs to the author to obtain an equitable remuneration which shall be fixed, failing agreement, by the competent authority

In 1948, the rights in 11bis(1) were expanded to a wider set of technologies, the exception in pargraph (2) was retained, and a new paragraph (3) was added for an exception for “ephemeral recordings made by a broadcasting body by means of its own facilities and used for its own emissions.” Paragraph (3) also provided that “The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by legislation.”

1948 Article 11bis
(1) Authors of literary and artistic works shall have the exclusive right of authorizing:

  1. the radio-diffusion of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
  2. any communication to the public, whether over wires or not, of the radio-diffusion of the work, when this communication is made by a body other than the original one;
  3. the communication to the public by loudspeaker or any other similar instrument transmitting, by signs, sounds or images, the radio diffusion of the work.

(2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral right of the author, nor to his right to obtain just remuneration which, in the absence of agreement, shall be fixed by competent authority.
(3) Except where otherwise provided, permission granted in accordance with the first paragraph of this Article shall not imply permission to record the work radio-diffused by means of instruments recording sounds or images. It shall, however, be a matter for legislation in the countries of the union to determine the regulations for ephemeral recordings made by a broadcasting body by means of its own facilities and used for its own emissions. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by legislation.

In the 1967 revision, the rights in paragraph (1) were revised, introducing the words “broadcasting” and “rebroadcasting”, the exception in paragraph (2) was left unchanged, and the first sentence of paragraph (3) was rewritten (but not the language on the exception for ephemeral recordings in the last two sentences).

1967 Article 11bis
(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:

  1. the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
  2. any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;
  3. the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

(2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.
(3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation.

The language from the 1967 revision was carried forward in the 1971 revisions and not changed by the 1979 amendments.

11. The minor exceptions doctrine

In addition to the explicit exceptions in the Berne, there is a “minor exceptions doctrine” which exists independent of the three-step test for the reproduction right in in Article 9(2) of the Berne. For more on this, see the discussion below regarding the WTO TRIPS and the Berne Convention.

Concluding comments on exceptions
While much as been written about the extent to which the Berne Convention expanded authors rights during its first Century, less is known about the evolution of copyright exceptions in the Berne over this same period. The development of new technologies and changes in the ways that works were used gave rise to new and in some cases expanded exceptions. Political developments were also important. The period between 1948 and 1967 was the period of decolonization and independence. The Berne was revised in 1948 to provide for an exception for translations of official texts, which would often be in the local rather than the colonial language, and in both 1967 and 1971, the Berne struggled with the new political power of developing countries seeking greater access to knowledge. Ultimately, the Berne became a frozen document, no longer subject to periodic revisions, following the bitter debates in 1967 and 1971 over special provisions for developing countries, and the issue of global norms for exceptions began to be seen primarily as a north/south trade issue to some developed countries.

III. Governance

1. Amending the Berne

In the 1986 to 1948 versions of the Berne, alteration of the Convention required “unanimous consent of the countries composing it.”

In 1967, at the Stockholm Conference where WIPO was founded, the rule for amending the Berne was changed for Articles 22 to 26, dealing with the rules for the Assembly of the Convention, the Executive Committee, the International Bureau, the budget and the rules for amending Articles 22 to 26, which now required support of 75 percent “of the votes cast” for Articles 23 to 25, and 80 percent “of the votes cast” for Article 22 and 26.

For all other parts of the Convention, the rule was changed from “unanimous consent of the countries composing it” to “unanimity of the votes cast.”

1886 Article 17
It is understood that no alteration in the present Convention shall be binding on the Union except by the unanimous consent of the countries composing it.

1908 Article 24
No alteration in the present Convention shall be binding on the Union except by the unanimous consent of the countries composing it.

1928 Article 24(3)
(3) No alteration in the present Convention shall be binding on the Union except by the unanimous consent of the countries composing it.

1948 Article 24(3)
(3) No alteration in this Convention shall be binding on the Union except by the unanimous consent of the countries composing it.

1967 Article 27(3).
(3) Subject to the provisions of Article 26 which apply to the amendment of Articles 22 to 26, any revision of this Convention, including the Protocol Regarding Developing Countries, shall require the unanimity of the votes cast.

1971 Article 27(3)
(3) Subject to the provisions of Article 26 which apply to the amendment of Articles 22 to 26, any revision of this Act, including the Appendix, shall require the unanimity of the votes cast.

1979 Article 27(3)
(3) Subject to the provisions of Article 26 which apply to the amendment of Articles 22 to 26, any revision of this Act, including the Appendix, shall require the unanimity of the votes cast.

2. The 1979 Amendments

The 1979 Amendments to the Berne concerned Article 22 and 23, dealing with administrative issues.

As already stated, the provisions on the Assembly of the Berne Union, on the Executive Committee of that Assembly, on the role of the International Bureau of WIPO and the Director General of WIPO in respect of the Berne Union, and on the finances of the Berne Union-that is, Articles 22, 23, 24 and 25 of the 1967 (Stockholm) Act-are generally referred to as “the administrative clauses.” The conference of revision of 1967 (Stockholm), conscious of the fact that revising the text of a multilateral treaty in a conference of revision is a difficult and slow task, decided that there should be a simpler method of revising the said administrative clauses. . . . The possibility of amendment offered by the Article under consideration was made use of for the first-and so far only -time in 1979, when the Assembly decided to replace its triennial ordinary sessions by biennial ordinary sessions, and the triennial budget and annual budgets by a biennial budget. For that purpose, the Assembly adopted amendments to Article 22(2)(a)(vi) and (7)(a) and Article 23(6)(a)(ii) and (iii). (The Berne Convention Centenary, page 52).

IV. Relationship to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights

1. Reference to Berne in the TRIPS
According to the TRIPS, WTO members are required to Comply with Articles 1 to 21 of the 1971 revision of the Berne Convention, and the Appendix, with the exception of Article 6bis on moral rights.

Article 9
Relation to the Berne Convention

1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

The TRIPS agreement has several important consequences for the Berne Convention. First, it allows WTO members to realize the benefits of foreign protection of works, without joining the Berne Convention itself, subject to Article 6 of the Berne and Articles 3 and 4 of the TRIPS. Second, the TRIPS introduces a number of new norms for copyright, some of which are more restrictive than the Berne, while others can be seen as expanding the flexibility to protect users of copyrighted works or address social objectives.

2. Special TRIPS flexibilities
Among the provisions in the TRIPS favorable to users are Article 7 on Objectives and Article 8 on Principles.

Article 7 Objectives

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Article 8 Principles

1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

Among the topics of particular relevance to copyright exceptions are those relating to the three step test (TRIPS Article 13), the first sale doctrine (TRIPS Article 6), the control of anti-competitive practices (TRIPS Article 8 and 40), and the TRIPS provisions regarding the enforcement of rights (TRIPS Part III), including the TRIPS provisions regarding limitations and exceptions to the remedies for infringement.

The Berne Convention has little to say about the enforcement of rights other than to say that “infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection.” [Article 16(1)] Part III of the TRIPS sets out standards for the “Enforcement of Intellectual Property Rights,” which includes some important safeguards for persons alleged to have infringed. In the second paragraph of Article 44 on injunctions, the TRIPS provides for the possibility of reducing all remedies for infringement to remuneration or compensation. This effectively allows WTO members to eliminate exclusive rights for any TRIPS category of intellectual property, including but not limited to copyright or related rights, in cases where right holders receive either “adequate compensation” or “adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization ” (TRIPS 31.h). In other words, the TRIPS creates a new area for flexibility outside of the assignment of rights, by providing for special limits on the enforcement of those rights.

Article 44.2 Injunctions
2. Notwithstanding the other provisions of this Part and provided that the provisions of Part II specifically addressing use by governments, or by third parties authorized by a government, without the authorization of the right holder are complied with, Members may limit the remedies available against such use to payment of remuneration in accordance with subparagraph (h) of Article 31. In other cases, the remedies under this Part shall apply or, where these remedies are inconsistent with a Member’s law, declaratory judgments and adequate compensation shall be available.

The cases where Article 44.2 liability rules have been implemented include by several countries for infringement of architectural works, and in the United States for use by or for the US government [28 USC 1498(b)].

3. WTO Dispute over Section 110(5) of the US copyright law, the Berne Minor Exceptions Doctrine, and TRIPS Article 13

The WTO has a single case addressing an exception to copyright regarding a US exception to the Berne obligations for rights in broadcasting that was a departure from the approach approved in Berne Article 11bis(2).

The 261 page panel report was issued on June 15, 2000. The Web page on the dispute is here:

The Section 110(5) case found that in addition to the exceptions that are provided for explicitly in the Berne Convention, there is a “minor exceptions” doctrine, that extended, among other things, to public performances of works.

6.48 We note that, in addition to the explicit provisions on permissible limitations and exceptions to the exclusive rights embodied in the text of the Berne Convention (1971), the reports of successive revision conferences of that Convention refer to “implied exceptions” allowing member countries to provide limitations and exceptions to certain rights. The so-called “minor reservations” or “minor exceptions” doctrine is being referred to in respect of the right of public performance and certain other exclusive rights.57 Under that doctrine, Berne Union members may provide minor exceptions to the rights provided, inter alia, under Articles 11bis and 11 of the Berne Convention (1971).58

fn57 The other main category of implied exceptions are understood to apply to the use of translations of literary works.
fn 58 The doctrine refers to (i) public performance and (ii) communication thereof to the public in the meaning of Article 11(1)(i-ii) as well as to (i) broadcasting by wireless diffusion, (ii) communication of the broadcast to the public by wire or re-broadcasting, and (iii) public communication by loudspeaker etc. of the broadcast in the meaning of Article 11bis(1). The minor exceptions doctrine also has been referred to in the context of Articles 11ter, 13 and 14 of the Berne Convention. See the Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, published by the International Bureau of WIPO (1986), published by the International Bureau of WIPO in 1986 (“Berne Convention Centenary”), pp. 203 and 204. See also Ricketson, Sam: The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986,
Centre for Commercial Law Studies, Queen Mary College, London (1987), pp. 532-537ff.

The WTO panel added “As regards the coverage of the minor exceptions doctrine in temporal respect, we cannot share the European Communities’ view that the coverage was “frozen” in 1967.” [Para 6.59]

The panel also concluded that the specific exception in 11bis(2) was not subject to the TRIPS three step test, but also not directly relevant, because the US legislation did not provide for remuneration. The TRIPS three step test would be used to evaluate an exception to the public performance and broadcasting right, a part of the minor exceptions doctrine.

6.87 We believe that Article 11bis(2) of the Berne Convention (1971) and Article 13 cover different situations. On the one hand, Article 11bis(2) authorizes Members to determine conditions under which the rights conferred by Article 11bis(1)(i- iii) may be exercised. The imposition of such conditions may completely replace the free exercise of the exclusive right of authorizing the use of the rights embodied in subparagraphs (i- iii) provided that equitable remuneration and the author’s moral rights are not prejudiced. However, unlike Article 13 of the TRIPS Agreement, Article 11bis(2) of the Berne Convention (1971) would not in any case justify use free of charge.

6.88 On the other hand, it is sufficient that a limitation or an exception to the exclusive rights provided under Article 11bis(1) of the Berne Convention (1971) as incorporated into the TRIPS Agreement meets the three conditions contained in its Article 13 to be permissible. If these three conditions are met, a government may choose between different options for limiting the right in question, including use free of charge and without an authorization by the right holder. This is not in conflict with any of the paragraphs of Article 11bis because use free of any charge may be permitted for minor exceptions by virtue of the minor exceptions doctrine which applies, inter alia , also to Article 11bis.

4. Least Developed Countries
Least Developed Countries have the ability to make a request for extensions of their obligations to apply the provisions regarding the Berne Convention in their national laws. So long as the request is “duly motivated, the TRIPS Council “shall . . accord extensions.”

TRIPS Article 66 Least-Developed Country Members
1. In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.

2. Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.

V. Years between revision or amendment

years_829x381.png

Notes

*Many of the documents on the Berne Convention revisions are available at the Oxford University Press: Companion Website: International Copyright and Neighbouring Rights: The Berne Convention and Beyond, 2nd Edition: Sam Ricketson & Jane Ginsburg

[1] Matt Schruers examined the diplomatic conference records where the debate over the word “short” occurred for the 1967 revision. “Germany looks to prop up news publishers with Snippet Subsidy, but is a quotation tax legal?” Project-Disco.Org. November 14, 2012. http://www.project-disco.org/intellectual-property/111412-germany-looks-to-prop-up-news-publishers-with-snippet-subsidy-but-is-a-quotation-tax-legal/

Attachments

BerneConventionCentenary_p52.pdf
1965_quotation_right.pdf
1965_general_report_Swedish_Birpi_study_group_9_10_10bis.pdf
1965_General_report_Swedish_Birpi_study_group_Protocol_developing_countries.pdf