Intellectual Property Laws

Project on the Topic

“Protection of rights under the

Berne Convention 1886”

Submitted to:- Submitted By:-

Mr. Agam sir Satwant Singh

265/17

B.Com LLB (Hons.)

Semester-10th

Session- 2021-22
 ACKNOWLEDGMENT

I would like to express the deepest appreciation to my teacher, Mr. Agam who is the attitude
and substance of genius and an excitement in regard to teaching. Without her guidance and
persistent help this project would not have been possible

I would like to present my gratitude to my fellow mates in helping me to make this project
and assisting me to present a wonderful work.

The same was a learning experience and a deepest insight into the topic given.

Above all I would like to thank God to keep in a position to make this assignment

Satwant Singh

Bcom LLB

10TH Semester

265/17
 Table of Contents

Particulars Page No.

Introduction 4

Characterstics and features of copyright 5

Protection of copyright under Berne convention 1886 6-10

Conclusion 11

References 12

Introduction
Copyright means the exclusive right to do or authorize others to do certain acts like
reproducing, making and issuing of copies, performing in public, communicating to public,
adaptation and translation in relation to literary, dramatic, musical, artistic, cinematograph
films and sound recordings works. Copyright is the right which the owner of the work has
and without his permission copying or reproducing the work in which copyright subsists
cannot be done. Copyright law prevents others from taking unfair advantage of a person’s
creative efforts involving his judgment, skill, labour, time, and capital in making the original
work. The objective of copyright law is to give protection to the creators of original works by
rewarding them with the exclusive right for a certain period Copyright protects literary,
dramatic, musical, artistic, cinematograph films and sound recordings. Literary works include
novels, stories, poems, dramas or any other writings, whatever may be the purpose or form.
Dramatic works include recitation, entertainment in dumb shows, scenic arrangement, dance,
mime, operas, ballet, screenplays, choreography, script etc, but not a cinematograph film or
movie as a whole. Musical works include music and include any graphical notation, choruses
etc. Artistic works include drawings, paintings, lithographs, diagrams, maps, charts or plans,
photographs, sculptures, architectural works, works of artistic craftsmanship etc.
Cinematographic works or motion pictures consist of works of visual recording without
sound or with a soundtrack including video films. Sound recording is the recording of sounds,
from which such sounds may be produced in any medium.

Examples of copyrighted works

1. Literary works – Books, novels, stories, computer program codes etc.

2. Musical works – Music, choruses etc.

3. Artistic works – Paintings, photographs,cartoons (Mickey Mouse, Tom and Jerry),

drawings etc.

4. Dramatic works – Dance steps, screenplays, operas etc.

5. Cinematograph films – Movies, video films etc.

6. Sound recordings – Any recording of sounds, recording of songs by sound recorders

etc.
Characteristic features of Copyright 
The main essential characteristic features of copyright are:

1. Originality

2. Expression in some form

3. Bundle of rights

Originality-
To have copyright, work must be original. This means literary, dramatic, musical, artistic,
cinematographic film and sound recordings must be created by the author’s intellect by
employing his skill, judgment, labour, time or capital and they must not be copied.

Expression in some form-

Copyright protection is given only when the created work is expressed or fixed in manual or
electronic or in some tangible form. A mere idea is not capable of protection under copyright.

Bundle of rights-
The term copyright includes a number of rights. The creator or author of the works will have
a bundle of rights in his creation. For example, Ms. J. K. Rowling who is the author of the
famous novel Harry Potter has multiple rights like the right of reproduction, right to issue
copies, right to perform or communicate the work in public, right to make a film, right to
translate, etc.

Protection of copyrights under berne convention (1886)

The Berne Convention protects literary and artistic works. The relevant provisions of the
convention have been enumerated below:

Article 2: Works Protected under the Convention

1. Literary and artistic works

2. Countries may mandate that the work will be protected only if it is fixed in
material form.
3. Derivative works: Translations, adaptations, arrangement of music and alterations
of literary and artistic works.
4. Countries may make laws to protect official texts: legislative, administrative or
legal texts.
5. Collection of literary or artistic work: encyclopaedia, dictionaries
6. Work to be protected in all countries. Beneficiaries of protection are the authors
and their successors or people to whom the title is transferred.
7. Countries may determine the extent of protection of applied arts and industrial
designs. If work is protected as design and model in one country, the same shall be
protected in other countries in accordance with the protection that country offers
for designs and models. If there is no provision for the same in the other country,
work is protected as an artistic work.
8. No protections to daily news and mere facts stated by the press.

Article 2(bis): Limitation for protection of certain works

1. Countries may exclude protection to political speeches or speeches delivered in the

course of legal proceedings.
2. Countries may make laws for the reproduction of lectures/addresses given in
public by press/broadcast etc.
3. The author has the right to maintain a collection of his lectures/speeches etc.

Article 4: Cinematographic and artistic works

1. Protection of Cinematographic Works: if the maker of work has his headquarters

or habitual residence in the member country.
 2. Protection of Works of Architecture and Certain Artistic Works: if the building or
artistic work incorporated in the building is in a member country.

Article 7: Term of Protection

1. Life of Author + 50 years after the death

2. Cinematographic works: 50 years from the date of publication/date of making
3. Anonymous/Pseudonymous works: 50 years from the date of publication. If
identity is revealed, then the general rule will apply. No protection if a reasonable
conclusion can be drawn that the author is dead for more than 50 years.
4. Photographic and applied art: 25 years from the date of making

The Berne Convention deals with the protection of works and the rights of their authors. It is
based on three basic principles and contains a series of provisions determining
the minimum protection to be granted, as well as special provisions available to developing
countries that want to make use of them.

(1) The three basic principles are the following:

(a) Works originating in one of the Contracting States (that is, works the author of which is a
national of such a State or works first published in such a State) must be given the same
protection in each of the other Contracting States as the latter grants to the works of its own
nationals (principle of "national treatment") .

(b) Protection must not be conditional upon compliance with any formality (principle of
"automatic" protection) .

(c) Protection is independent of the existence of protection in the country of origin of the
work (principle of "independence" of protection). If, however, a Contracting State provides
for a longer term of protection than the minimum prescribed by the Convention and the work
ceases to be protected in the country of origin, protection may be denied once protection in
the country of origin ceases .

(2) The minimum standards of protection relate to the works and rights to be protected, and
to the duration of protection:
(a) As to works, protection must include "every production in the literary, scientific and
artistic domain, whatever the mode or form of its expression" (Article 2(1) of the
Convention).

(b) Subject to certain allowed reservations, limitations or exceptions, the following are among
the rights that must be recognized as exclusive rights of authorization:

 the right to translate,

 the right to make adaptations and arrangements of the work,

 the right to perform in public dramatic, dramatico-musical and

musical works,

 the right to recite literary works in public,

 the right to communicate to the public the performance of such

works,

 the right to broadcast (with the possibility that a Contracting State

may provide for a mere right to equitable remuneration instead of a
right of authorization),

 the right to make reproductions in any manner or form (with the

possibility that a Contracting State may permit, in certain special cases,
reproduction without authorization, provided that the reproduction
does not conflict with the normal exploitation of the work and does not
unreasonably prejudice the legitimate interests of the author; and the
possibility that a Contracting State may provide, in the case of sound
recordings of musical works, for a right to equitable remuneration),

 the right to use the work as a basis for an audiovisual work, and the
right to reproduce, distribute, perform in public or communicate to the
public that audiovisual work .

The Convention also provides for "moral rights", that is, the right to claim authorship of the
work and the right to object to any mutilation, deformation or other modification of, or other
derogatory action in relation to, the work that would be prejudicial to the author's honor or
reputation.

(c) As to the duration of protection, the general rule is that protection must be granted until
the expiration of the 50th year after the author's death. There are, however, exceptions to this
general rule. In the case of anonymous or pseudonymous works, the term of protection
expires 50 years after the work has been lawfully made available to the public, except if the
pseudonym leaves no doubt as to the author's identity or if the author discloses his or her
identity during that period; in the latter case, the general rule applies. In the case of audio
visual (cinematographic) works, the minimum term of protection is 50 years after the making
available of the work to the public ("release") or – failing such an event – from the creation of
the work. In the case of works of applied art and photographic works, the minimum term is
25 years from the creation of the work .

(3) The Berne Convention allows certain limitations and exceptions on economic rights, that
is, cases in which protected works may be used without the authorization of the owner of the
copyright, and without payment of compensation. These limitations are commonly referred to
as "free uses" of protected works, and are set forth in Articles 9(2) (reproduction in certain
special cases), 10 (quotations and use of works by way of illustration for teaching purposes),
10bis (reproduction of newspaper or similar articles and use of works for the purpose of
reporting current events) and (ephemeral recordings for broadcasting purposes).

(4) The Appendix to the Paris Act of the Convention also permits developing countries to
implement non-voluntary licenses for translation and reproduction of works in certain cases,
in connection with educational activities. In these cases, the described use is allowed without
the authorization of the right holder, subject to the payment of remuneration to be fixed by
the law.

The Berne Union has an Assembly and an Executive Committee. Every country that is a
member of the Union and has adhered to at least the administrative and final provisions of the
Stockholm Act is a member of the Assembly. The members of the Executive Committee are
elected from among the members of the Union, except for Switzerland, which is a member ex
officio.

The establishment of the biennial program and budget of the WIPO Secretariat – as far as the
Berne Union is concerned – is the task of its Assembly.

The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in
1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at
Stockholm in 1967 and at Paris in 1971, and was amended in 1979.

The Convention is open to all States. Instruments of ratification or accession must be

deposited with the Director General of WIPO .

Under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS

Agreement), the principles of national treatment, automatic protection and independence of
protection also bind those World Trade Organization (WTO) Members not party to the Berne
Convention. In addition, the TRIPS Agreement imposes an obligation of "most-favored-
nation treatment", under which advantages accorded by a WTO Member to the nationals of
any other country must also be accorded to the nationals of all WTO Members. It is to be
noted that the possibility of delayed application of the TRIPS Agreement does not apply to
national treatment and most-favored obligations.

Under the TRIPS Agreement, an exclusive right of rental must be recognized in respect of
computer programs and, under certain conditions, audio visual works.

Under the TRIPS Agreement, any term of protection that is calculated on a basis other than
the life of a natural person must be at least 50 years from the first authorized publication of
the work, or – failing such an event – 50 years from the making of the work. However, this
rule does not apply to photographic works, or to works of applied art.

 It is to be noted that WTO Members, even those not party to the Berne Convention, must
comply with the substantive law provisions of the Berne Convention, except that WTO
Members not party to the Convention are not bound by the moral rights provisions of the
Convention.
Conclusion
Copyright laws have evolved over time and have incorporated new elements under its wing
of protection. The evolution that started with the enactment of the Statute of Anne wherein
only literary works were protected has grown into a multi-dimensional protective regime
where even modern-day computer-generated works are being protected. The three important
principles governing the protection of copyright works across the globe were laid down under
the Berne Convention. The principles are:

1. National treatment: The work of any copyright owner published in any member state
will have the same protection in other member states.

2. Automatic protection: Automatic and unconditional protection in member countries.

3. Independence of protection: Protection of work in member countries is independent of

the existence of protection of workers in the country where the work was first
published.

With these three principles in place, copyright protection is assured across all the member
countries. Only time will tell whether or not these principles will remain efficient and
whether or not new elements would be brought under the ambit of copyright protection.

References
 https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=J0070017
 https://copyright.gov.in/Documents/Manuals/LITERARY_MANUAL.pdf

 https://www.legalserviceindia.com/copyright/copyright-literary-book-lyrics-screenplay.htm

 https://www.newmediarights.org/business_models/artist/
what_types_things_are_protected_copyright

 https://corpbiz.io/learning/type-of-works-protected-by-copyright-in-india/