Alois Troller, ‘The Hundredth Anniversary of the Berne Convention: the Development of Law in the Copyright Field Through the Interaction of the Convention and Swiss Legislation’, 6 Copyright Monthly Review of the World Intellectual Property Organization 28-213 (1986).
Troller – The Hundredth Anniversary of the Berne Convention
Background
The Berne Convention for the Protection of Literary and Artistic Works forms the foundation for copyright protection in international law. Together with the TRIPS Agreement of the WTO and the subsequent WIPO Copyright Treaty and WIPO Performances and Phonogram Treaty, the Convention establishes the framework for the protection of literary and artistic works and the universe of works stemming from the entertainment and software industries. The Convention is of central importance to the cyber economy.
The Berne Convention was negotiated in Berne, Switzerland in 1884 and 1885, shortly after the conclusion of the Paris Convention for the Protection of Industrial Property in 1883. Two conferences were held in Berne and six sessions were held. The conference was hosted and chaired by the Swiss government. Leadership at the time was by the European powers and Switzerland, with the United States still reluctant to engage in a period when many publications were imported from Europe and did not enjoy lasting protection. The United States only joined the Berne Convention in 1988, and would eventually take the lead on the complex of issues of software, film and broadcasting protection in the GATT Uruguay Round (1986-1992), resulting in the TRIPS Agreement and subsequent bilateral and plurilateral instruments.
Subsequently, the administration of the Union created by the Convention was formally entrusted to a distinct Bureau de l’Union internationale pour la protection des oeuvres littéraires et artistiques (Bureau of the International Union for the Protection of Literary and Artistic Works), subsequently conjoined with the Bureau International pour la Protection de la Propriété Industrielle to form the Bureaux Internationaux pour la Protection de la Propriété Intellectuelle (BIRPI), which in 1970 became the World Intellectual Property Organization. As described in the section above on the Paris Convention, the Bureaux were created as an agency under Swiss law and subsequently directed by the Swiss nationals discussed above under the heading of the Paris Convention. In providing the infrastructure of the BIRPI, Switzerland made a large contribution to the internationalization of intellectual property law and norm diffusion within the field. The word “bureau” is still used to refer to the WIPO Secretariat under the appellation “International Bureau of WIPO”, or in French the “Bureau international de l’OMPI”.
The initiative to host the founding Berne conferences in 1884 and 1885 were a strong expression of internationalism. It was only prior to the conference that Switzerland adopted its first Copyright Act in 1884, after much resistance following the imposition of protection of French works in a bilateral treaty adopted in 1864. Switzerland was not an exporter of cultural goods, and there was no strong lobby for literature and the arts. Society at large was interested in copying and using whatever seemed suitable. It is remarkable to note that the Berne Convention eventually served as an important benchmark for improving copyright protection in subsequent legislation, in 1984 and 1992. It is interesting to observe that Switzerland for a long time considered moral rights to be sufficiently protected under the personality protections per Article 28 of Civil Code. Stronger moral rights were only introduced in 1984, and today they are again being critically analysed, see Cyrill Rigamonti: Deconstructing Moral Rights, 47 Harvard Law Review 353-412 (2006). A framework based upon human rights protection is proposed instead, see Thomas Cottier: Copyright and the Human Right to Property: a European and International Case Law Approach, in: Christophe Geiger et al. (eds.) Intellectual Property and the Judiciary 116-142 (Cheltenham: Edward Elgar 2918).
The Berne Convention (Act of 1971) contains a series of rules regarding various categories of rights, the rights entailed and the limitations and exceptions to those rights. It has an Appendix titled Special Provisions Regarding Developing Countries.
Switzerland is also party to the 1952 Universal Copyright Convention (UCC), which is presently one of the two principal international conventions protecting copyright, the other being the Berne Convention, and to the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting, co-administered with UNESCO (the United Nations Educational, Scientific and Cultural Organization) and ILO (the International Labour Organization).
Since then, Switzerland has actively participated in the negotiations of, and joined, a new generation of treaties. The WIPO Copyright Treaty (WCT) of 1996 is a special agreement under the Berne Convention which addresses the protection of works and the rights of their authors in a digital environment. In addition to the rights recognized by the Berne Convention, certain economic rights accrue under certain conditions, such as distribution, rental and communication rights. Any Contracting Party (even if not bound by the Berne Convention) must comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention. The WCT also includes two works protectable by copyright: computer programs and compilations of data or other material (“databases”) which constitute intellectual creations. The WIPO Performances and Phonograms Treaty (WPPT) of 1996 deals with the rights accruing to two kinds of beneficiaries, particularly in a digital environment: (i) performers (actors, singers, musicians, etc.); and (ii) producers of phonograms (persons or legal entities that take the initiative and have responsibility for the fixation of sounds). The Beijing Treaty on Audiovisual Performances of 2012 addresses the intellectual property rights of performers in audio-visual performances, notably by bolstering five kinds of exclusive economic rights for the beneficiaries’ performances fixed in an audio-visual format: rights of reproduction, distribution, rental, making available and of broadcasting and communication to the public. Switzerland also joined the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (2013). This last treaty usefully complements the Berne Convention rules dealing with the complex issue of limitations and exceptions to copyrights. The treaty clearly spelt out an exception in favour of a category of beneficiaries. As underscored by the International Bureau of WIPO, the treaty has a clear humanitarian and social development dimension, and its main goal is to create a set of mandatory limitations and exceptions for the benefit of the blind, visually impaired and otherwise print-disabled.
Copyright protection is of great importance to the cultural sector, which has been growing in the country over decades. Interests of artist and performers are managed by collecting societies. In Switzerland there are four Swiss collecting societies: SUISA (non-theatrical musical works), Pro Litteris (literary and non-plastic works), Suissimage (audiovisual works) and SSA (“Swiss Society of Authors”) for theatrical, theatrical-musical, choreographed and some audio-visual and multimedia works).
Summary
In 1986, the World Intellectual Property Organization published a volume on the genesis of the Berne Convention in celebration of the first centennial of the treaty. The book describes the beginnings, the negotiations and the evolution of the Berne Convention and its membership, offering a detailed account of the Berne Conferences and its Sessions, and the excerpts attached include the minutes of meetings held in the Senate chambers under the chairmanship of Numa Droz, Federal Councillor of Economics and Agriculture, Louis Ruchonnet, Federal Councillor for Justice and Police, and Alois von Orelli, a professor of law in Zurich.
The volume also includes a detailed description of the staffing and operation of the BIRPI and biographical profiles of its Swiss directors from 1893 to 1963: Henry Morel (1893-1912), Robert Comtesse (1912-1921), Ernest Roethlisberger (1922-1926), Fritz Ostertag (1926-1938), Bénigne Mentha (1938-1953) and Jacques Secrétan (1953-1963).
Beyond the excerpts, the full volume provides a detailed discussion of the Berne Convention and summaries of the revisions made in 1896 (Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 Stockholm and 1971 (Paris).
The paper by Alois Troller provides an interesting account of the arduous and painful relationship with the Berne Convention and domestic protection of copyright in modern Swiss history. A bilateral agreement imposed by France on Switzerland in 1864 protected French but not Swiss works. The Confederation had no jurisdiction to legislate until 1874. The first, weak Copyright Act was adopted in 1884. The paper describes the important role of Federal Councillor Numa Droz in ably chairing the Berne Conferences, and the role of Ernest Roehtlisberger as a driving force, then-director of the BIRPI, in bringing about protection improvements in the Act of 1922 by referring to the Berne Convention as revised in 1908. Subsequently, it took a very long time to adapt legislation to the 1928 revisions of the Convention. Interestingly, the protection of moral rights was considered to be sufficiently afforded by Article 28 of Civil Code, providing protection of personality so that no need was felt to change the law. It was only in 1984 that the Federal Council argued that moral rights protection goes beyond personality protection under Civil Code, and the possibility of referring to higher levels of protection under the Berne Convention was introduced in 1984. The paper contains interesting references to scholarly publications by BIRPI directors.