Copyright: Its History and Its Law Part 30

"4. Authors within the jurisdiction of the Union will enjoy in all the countries the exclusive rights of translation of their works during a period of ten years after publication in any one country of the Union of an authorized translation.

"5. It is proposed that it shall be made legal to publish extracts from works which have appeared in any country of the Union, provided that such publications are adapted for teaching or have a scientific character. The reciprocal publication of books composed of fragments of various authors will also be permitted. It will be an indispensable condition, however, that the source of such extracts shall at all times be acknowledged.

"6. On the other hand, it will be unlawful to publish, without special permission of the holder of the copyright, any piece of music, in any collection of music used in musical academies.

"7. The rights of protection accorded to musical works will prohibit arrangements of music containing fragments from other composers, unless the consent of such composer be first obtained."

{Sidenote: Second official conference, 1885}

A second international conference was held at Berne from September 7 to 18, 1885, for the further consideration of the project. This was partic.i.p.ated in by representatives from sixteen countries,--Argentina, Belgium, Costa Rica, France, Germany, Great Britain, Haiti, Honduras, Holland, Italy, Paraguay, Sweden and Norway, Spain, Switzerland, and Tunis. The United States was also represented at that conference by a "listening delegate," Boyd Winchester, then the United States minister at Berne.

{Sidenote: Third official conference, 1886}

The negotiations at Berne culminated at the third formal conference, of September 6 to 9, 1886, by agreement on a convention const.i.tuting an international copyright union, the _Union Internationale pour la Protection des OEuvres Litteraires et Artistiques_, which was signed on September 9, by the plenipotentiaries of ten countries, Great Britain, Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and Liberia. At this conference the United States was represented only as in 1885.

{Sidenote: Berne convention, 1886:}

The convention included twenty-one articles besides an additional article and final protocol, article I being as follows: "The contracting States are const.i.tuted into an Union for the protection of the rights of authors over their literary and artistic works."

{Sidenote: Authors and terms}

It was provided (art. II) that authors of any one of the countries shall enjoy in the other countries the same rights as natives, on complying with the formalities prescribed in the country of origin, _i. e._, of first publication, or in case of simultaneous publication, in the country having the shortest term of protection, for a period not exceeding the term of protection granted in the country of origin. This protection was extended (art. III) to the publishers within the Union of works whose authors belong to a country outside the Union.

{Sidenote: "Literary and artistic works" defined}

The expression "literary and artistic works" was defined (art. IV) by specification, including dramatic and musical works, but not mentioning photographs or actual works of architecture. Translations were protected (art. V) for ten years, which period should run for works published in incomplete parts (_livraisons_) from the publication of the last part, or in the case of volumes or serial collections (_cahiers_), from that of each volume, and in all cases from the thirty-first of December of the calendar year of publication. Authorized translations were protected (art. VI) as original works, but translators of works in the public domain could not oppose other translations. Reproduction of newspaper or periodical articles was permitted (art. VII) unless expressly forbidden, but this prohibition could not apply to political discussions, news matter or "current topics" (_faits divers_). Liberty of extract from literary or artistic works otherwise was left (art. VIII) to domestic legislation or specific treaties.

{Sidenote: Performing rights}

Protection was specifically extended (art. IX) to the representation of dramatic or dramatico-musical works or translations thereof, and, on condition of express reservation, to musical works; and adaptations, arrangements, and other unauthorized indirect appropriations were specially included (art. X) among illicit reproductions subject to determination by the courts of the respective countries.

{Sidenote: Other provisions}

The author indicated on a work, or the publisher of an anonymous or pseudonymous work, was given (art. XI) authority to inst.i.tute proceedings, but the tribunal might require certificate that the formalities in the country of origin had been accomplished. Pirated (_contrefait_) works might be seized (art. XII) on importation, according to domestic law. The convention was not to derogate (art.

XIII) from the right of each country to domestic control by legislation or police. Existing works, not fallen into the public domain in the country of origin (art. XIV), were protected. The several countries reserved (art. XV) the right to make separate and particular treaty arrangements. An international office was established (art. XVI) under the name of "Office of the International Union for the Protection of Literary and Artistic Works," under the authority of the Swiss Confederation, the expenses to be borne by the signatory countries.

Revision at future conferences was provided for (art. XVII) with stipulation that alterations should not be binding except by unanimous consent. Accession of other countries was permitted (art. XVIII) on notice to the Swiss Confederation, and similar provision was made (art.

XIX) for the accession of colonies. Ratification within one year (art.

XX) and operation within three months thereafter (art. XXI) and withdrawal by one year's notice of denunciation were provided for. The "additional article" provided that the convention should not affect existing conventions between the states, conferring more extended powers or containing other stipulations not contrary to the convention.

{Sidenote: Final protocol}

On the exchange of ratifications September 5, 1887, a final protocol was agreed upon, extending article IV to cover photographs in those countries whose domestic legislation or treaty arrangements permitted such protection; extending article IX to ch.o.r.egraphic works in countries in which they were covered by domestic legislation; explicitly excepting mechanical music reproductions from protection; and specifically referring to domestic or treaty arrangements, the protection afforded by article XIV to existing works not fallen into the public domain. The final protocol also provided for the organization of the international office under regulation by the Swiss Confederation, for French as the official language, for the allotment of expenses among the countries, and for other administrative details.

{Sidenote: Ratification in 1887}

The Berne convention, as signed in that city September 9, 1886, by the representatives of ten nations, Great Britain, Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and Liberia, was ratified in the same city September 5, 1887, by exchange of ratifications on the part of all these powers except Liberia, and became effective December 5, 1887. The French acceptance included Algiers and the other French colonies, the Spanish acceptance all Spanish colonies, and the British acceptance, India, Canada and Newfoundland, the South African and the Australian colonies. To these powers were later added Luxemburg (1888), Monaco (1889), Montenegro (1893), which however withdrew in 1900, Norway (1896), j.a.pan (1899), Denmark (1903), Sweden (1904), and Great Britain's new colonies, the Transvaal and Orange Free State (1903), leaving three nations of first rank outside the Union, _i. e._, Austria-Hungary, Russia, and the United States, aside from the South American countries later a.s.sociated in the Pan American Union.

{Sidenote: Paris conference, 1896}

The revision of the Berne convention provided for in art. XVII, which was to be made according to the final protocol at a conference at Paris to be called by the French government within from four to six years, was not actually undertaken until 1896. When the signatory powers met in conference at Paris, April 15 to May 4, 1896, they adopted an "additional act," of four articles, which besides making verbal amendments for clarification, substantially modified articles II, III, V, VII, XII, XX, of the Berne convention and the first and fourth numbers of the final protocol; and issued also an "interpretative declaration" as to both the Berne convention and the final protocol, the additional act and the interpretative declaration being sometimes cited together as "the Paris acts."

{Sidenote: Paris Additional Act}

The Additional Act of Paris (art. I and II) included "posthumous works"

amongst protected works, replaced the privileges given to publishers by a provision extending protection to authors not subjects of unionist countries for works first published in one of those countries; extended the protection of translations throughout the term of the original work, but with the proviso that the right for any language should expire after ten years unless the author had provided for a translation into that language; specifically included serial novels published in periodicals, and required indication of the source of articles reproduced from periodicals. The right to seize piratical works was given to the "competent authorities" of each country without specific reference to importation. Withdrawal by denunciation was made applicable only to the country withdrawing, leaving the convention binding upon all others.

It further provided (art. III) that the several countries of the Union might accede to these additional acts separately, as might other countries, and for ratification within a year and enforcement within three months thereafter.

{Sidenote: Paris Interpretative Declaration}

The Declaration, simultaneously adopted, interpreting the convention of Berne and the Paris additional act, declared (1) that protection depends solely on accomplishment in the country of origin of the conditions and formalities prescribed therein; (2) that "published works" (_oeuvres publiees_) means works actually issued to the public (_oeuvres editees_) in one of the Union countries--"consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of works of art, do not const.i.tute publication"; and (3) that "the transformation of a novel into a play, or of a play into a novel" comes under the protection provided.

{Sidenote: Ratification in 1897}

The Paris acts, as adopted May 4, 1896, were ratified September 9, 1897, the declaration becoming effective immediately and the additional act three months later. Both the additional act and the interpretative declaration were ratified by Belgium, France, Germany, Haiti, Italy, Luxemburg, Monaco, Montenegro, Spain, Switzerland and Tunis. Great Britain ratified only the additional act and not the interpretative declaration, while Norway, which had become a unionist country April 13, 1896, ratified only the interpretative declaration and not the additional act. Thus from December 9, 1897, the Berne convention and the Paris acts together const.i.tuted, with the exceptions noted, the fundamental law of the International Copyright Union.

{Sidenote: Berlin conference, 1908}

A second conference for revision was called in 1908 by the German government, and met at Berlin October 14 to November 14, resulting in the signature on November 13, 1908, of a revised convention continuing or reconst.i.tuting the International Copyright Union and replacing by subst.i.tution the Berne convention and Paris acts in those states accepting it by ratification. To this conference the German government invited not only the signatory powers of the Union, then fifteen,--Belgium, Denmark (which had acceded to the Union in 1903), France, Germany, Great Britain, Haiti, Italy, j.a.pan (1899), Luxemburg, Monaco, Norway, Spain, Sweden (1904), Switzerland, and Tunis; but also non-unionist countries, of which representatives were sent from twenty countries,--Greece, Holland, Portugal, Roumania and Russia, China, Persia and Siam, Liberia, the United States of America, Mexico, Guatemala and Nicaragua, Argentina, Chile, Colombia, Ecuador, Peru, Uruguay and Venezuela. The working committees were made up exclusively from representatives of the signatory powers, only these countries partic.i.p.ating in the votes; active partic.i.p.ation otherwise was confined to representatives of countries expecting to become signatory powers, Holland and Russia, while the other partic.i.p.ants acted as observing representatives or supplied information on request.

{Sidenote: United States' position}

The United States delegate, Thorvald Solberg, Register of Copyrights, was present only to make observations and report, with no power to vote or to take part in the discussions, as stated in the remarks for which, on October 15, he was called upon, as follows:

"In 1885 and 1886, at the conferences convened to draft the convention to create the International Union for the Protection of Literary and Artistic Property, the United States was represented. At that time, however, it was not deemed possible to send a plenipotentiary delegate, nor could such a representative be sent to attend the first conference of revision which met at Paris in 1896.

"When the present conference was arranged for--early in the year--the German amba.s.sador at Was.h.i.+ngton wrote to the Secretary of State of the United States a letter explaining the purpose and scope of this congress, inviting the Government of the United States to send delegates. The amba.s.sador's letter explained that, in addition to delegates representing governments in the union, there would be present representatives from a considerable number of non-union nations. It was further stated that the attendance of such delegates from non-union countries would be greeted with special pleasure. This because of the conviction that whatever might be the final position taken by the non-union countries, or their laws, in relation to copyright, partic.i.p.ation in the proceedings of this conference by such delegates from non-union countries would at all events contribute to arouse and increase interest in the Berne Union and its beneficial work.

"The German amba.s.sador's letter further explained that the delegates from non-union countries attending the conference would have full freedom of action; that they might confine themselves to following the discussions without taking any stand with regard to them, and that it would be left to the discretion of the non-union governments as to whether they would empower their delegates to join the Berne Union.

"The Government of the United States again finds it impracticable to send a delegate authorized to commit the United States to actual adhesion at this time to the Berne Convention. Nevertheless, it has been felt that the representation of the United States, even within the limitations indicated, might be beneficial: first, to indicate the sympathy of our Government with the general purposes of the International Copyright Union; second, to secure such information regarding the proceedings of the conference as might prove valuable; and third, to place (by means of such representation) at the disposal of the conference authoritative knowledge as to the facts of copyright legislation and procedure within the United States--information which it is hoped may be of use to the members of the conference in their deliberations."

{Sidenote: Welcome of non-unionist countries}

In response to the partic.i.p.ation of non-unionist countries, Prof. L.

Renault of the French delegation, Chairman at the working sessions of the conference, spoke of the wisely liberal practice of including non-unionist countries in the invitation, recognized "the difficulty which these countries find in pa.s.sing through the halting places," which the Union had itself gone through, and referred with especial gratification to the representation of Holland, Russia and the United States.

{Sidenote: Death of Sir Henry Bergne}

The closing days of the conference were darkened by the fatal illness of Sir Henry Bergne, head of the British delegation, who expired on November 15, the day after the adjournment of the conference, at the successful culmination of work toward which he had given many years of active and effective life.

{Sidenote: Berlin convention, 1908:}

{Sidenote: "Literary and artistic works" defined}

The Berlin convention included thirty articles, covering the same ground as those of the Berne convention and the Paris acts, but somewhat differently arranged, so that comparison is not quite direct. Article 1 reconst.i.tutes the International Copyright Union. The expression "literary and artistic works" is defined (arts. 2 and 3, covering previous arts. IV-VI) as including "all productions in the literary, scientific or artistic domain, whatever the mode or form of reproduction, such as: books, pamphlets and other writings; dramatic or dramatico-musical works; ch.o.r.egraphic works and pantomimes, the stage directions ('_mise en scene_') of which are fixed in writing or otherwise; musical compositions with or without words; drawings, paintings; works of architecture and sculpture; engravings and lithographs; ill.u.s.trations; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences. Translations, adaptations, arrangements of music and other reproductions transformed from a literary or artistic work, as well as compilations from different works, are protected as original works without prejudice to the rights of the author of the original work." The contracting countries are pledged to secure protection fully for these categories and for photographic works and "works obtained by any process a.n.a.logous to photography" and to protect "works of art applied to industry" so far as domestic legislation allows.

{Sidenote: Authors' rights}