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{{Infobox treaty
| name                = Berne Convention
| long_name           = Berne Convention for the<br>Protection of Literary and Artistic Works
| image               =Berne Convention signatories.svg
|image_alt={{!}}alt=refer to caption| caption             =Ratifications of the Convention (blue) as of 2012
| type                =
| date_drafted        =
| date_signed         = 9 September 1886
| location_signed     =[[Berne]], Switzerland
| date_sealed         =
| date_effective      =5 December 1887
| condition_effective = 3 months after exchange of ratifications
| signatories         =
| parties             = 172
| ratifiers           = 
| depositor           = Director General of the World Intellectual Property Organization
| language            = 
| languages           = signed in French (prevailing in case of differences in interpretation) and English, officially translated in Arabic, German, Italian, Portuguese and Spanish
| wikisource          =Convention for the Protection of Literary and Artistic Works
| image_width         =335
| date_expiration     =
}}

The '''Berne Convention for the Protection of Literary and Artistic Works''', usually known as the '''Berne Convention''', is an [[international agreement]] governing [[copyright]], which was first accepted in [[Berne]], [[Switzerland]], in 1886.

The Berne Convention formally mandated several aspects of modern copyright law; it introduced the concept that a copyright exists the moment a work is "fixed", rather than requiring [[Copyright registration|registration]]. It also enforces a requirement that countries recognize copyrights held by the citizens of all other parties to the convention.

== Content ==
The Berne Convention requires its parties to treat the copyright of works of authors from other parties to the convention (known as members of the ''Berne Union'') at least as well as those of its own nationals. For example, [[French copyright law]] applies to anything published or performed in France, regardless of where it was originally created.

In addition to establishing a system of equal treatment that internationalised copyright amongst parties, the agreement also required member states to provide strong minimum standards for copyright law.

Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration. However, when the United States joined the Convention 1 March 1989,<ref>{{cite book |title=Circular 38A: International Copyright Relations of the United States |year=2014 |publisher=U.S. Copyright Office |url=http://copyright.gov/circs/circ38a.pdf |page=2 |accessdate=5 March 2015}}</ref> it continued to make [[statutory damages for copyright infringement|statutory damages]] and [[attorney's fees]] only available for registered works.

===Applicability===
Under Article&nbsp;3, the protection of the Convention applies to nationals and residents of countries that are party to the convention, and to works first published or simultaneously published (under Article&nbsp;3(4), "simultaneously" is defined as "within 30&nbsp;days"<ref name=Article3/>) in a country that is party to the convention.<ref name=Article3/> Under Article&nbsp;4, it also applies to cinematic works by persons who have their headquarters or habitual residence in a party country, and to architectural works situated in a party country.<ref>Berne Convention [http://zvon.org/law/r/bern.html#p~5 Article&nbsp;4].</ref>

===Country of origin===
The Convention relies on the concept of "country of origin". Often determining the country of origin is straightforward: when a work is published in a party country and nowhere else, this is the country of origin. However, under Article&nbsp;5(4), when a work is published simultaneously in several party countries (under Article&nbsp;3(4), "simultaneously" is defined as "within 30&nbsp;days" <ref name=Article3>Berne Convention [http://zvon.org/law/r/bern.html#p~4 Article&nbsp;3].</ref>), the country with the [[Rule of shorter term|shortest term]] of protection is defined as the country of origin.<ref name=Article5>Berne Convention [http://zvon.org/law/r/bern.html#p~6 Article&nbsp;5].</ref>

For works simultaneously published in a party country and one or more non-parties, the party country is the country of origin. For unpublished works or works first published in a non-party country (without publication within 30&nbsp;days in a party country), the author's nationality usually provides the country of origin, if a national of a party country. (There are exceptions for cinematic and architectural works.)<ref name=Article5/>

In the Internet age, unrestricted publication online may be considered publication in every sufficiently internet-connected jurisdiction in the world. It is not clear what this may mean for determining "country of origin". In ''[[Timbaland plagiarism controversy|Kernel v. Mosley]]'', a U.S.&nbsp;court "concluded that a work created outside of the United States, uploaded in Australia and owned by a company registered in [[Finland]] was nonetheless a U.S.&nbsp;work by virtue of its being published online". However other U.S.&nbsp;courts in similar situations have reached different conclusions, e.g. ''[[Håkan Moberg v. 33T LLC]]''.<ref>Fitzgerald, Brian F., Shi, Sampsung Xiaoxiang, Foong, Cheryl, & Pappalardo, Kylie M. (2011), "[http://eprints.qut.edu.au/48050/ Country of Origin and Internet Publication : Applying the Berne Convention in the Digital Age]". ''Journal of Intellectual Property'' (NJIP) Maiden Edition, pp. 38–73.</ref> The matter of determining the country of origin for digital publication remains a topic of controversy among law academics as well.<ref>See for example the columns of [[Jane Ginsburg]]:
* [http://www.mediainstitute.org/IPI/2009/102009_BorderlessPublications.php Borderless Publications, the Berne Convention, and U.S. Copyright Formalities]
* [http://www.mediainstitute.org/IPI/2011/062811.php Internet Publication and U.S. Copyright Imperialism ]
* [http://www.mediainstitute.org/IPI/2011/082911.php When a Work Debuts on the Internet, What Is its Country of Origin?] [http://www.mediainstitute.org/IPI/2012/012312.php Part II]
And the article 
* Chris Dombkowski, [http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1571&context=chtlj SIMULTANEOUS INTERNET PUBLICATION AND THE BERNE CONVENTION], SANTA CLARA COMPUTER & HIGH TECH. L.J., vol. 29, pp 643-674</ref>

===Copyright term===
The Berne Convention states that all works except photographic and cinematographic shall be copyrighted for at least 50&nbsp;years after the author's death, but parties are free to provide longer [[Copyright term|terms]],<ref name=Article7>Berne Convention [http://zvon.org/law/r/bern.html#p~9 Article&nbsp;7].</ref> as the [[European Union]] did with the 1993 [[Directive on harmonising the term of copyright protection]]. For photography, the Berne Convention sets a minimum term of 25&nbsp;years from the year the photograph was created, and for cinematography the minimum is 50&nbsp;years after first showing, or 50&nbsp;years after creation if it hasn't been shown within 50&nbsp;years after the creation. Countries under the older revisions of the treaty may choose to provide their own protection terms, and certain types of works (such as phonorecords and motion pictures) may be provided shorter terms.

If the author is unknown, because for example the author was deliberately anonymous or worked under a pseudonym, the Convention provides for a term of 50&nbsp;years after publication ("after the work has been lawfully made available to the public"). However, if the identity of the author becomes known, the copyright term for known authors (50&nbsp;years after death) applies.<ref name=Article7/>

Although the Berne Convention states that the copyright law of the country where copyright is claimed shall be applied, Article&nbsp;7(8) states that "unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work",<ref name=Article7/> i.e.,&nbsp;an author is normally not entitled a longer copyright abroad than at home, even if the laws abroad give a longer term. This is commonly known as "the [[rule of the shorter term]]". Not all countries have accepted this rule.

=== ''The minimum standards of protection relate to the works and rights to be protected'' ===
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).

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.

===Fair uses===
The Berne Convention authorizes countries to allow "fair" uses of copyrighted works in other publications or broadcasts.<ref>{{cite news 
  |first=Hannibal |last=Travis 
  |title=Opting Out of the Internet in the United States and the European Union: Copyright, Safe Harbors, and International Law
  |ssrn=1221642 |work=Notre Dame Law Review, vol. 84, p. 384 |publisher=President and Trustees of Notre Dame University in South Bend, Indiana |year=2008 |accessdate=9 June 2010}}</ref><ref>Berne Convention [http://zvon.org/law/r/bern.html#p~13 Article&nbsp;10], [http://zvon.org/law/r/bern.html#p~14 article 10bis].</ref> Implementations of this part of the treaty fall into the broad categories of [[fair use]] and [[fair dealing]].

The Agreed Statement of the parties to the [[WIPO Copyright Treaty]] of 1996 states that: "It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention."<ref name=Travis>Travis, p. 373.</ref> This language may mean that Internet service providers are not liable for the infringing communications of their users.<ref name=Travis/> Critics claim that the convention does not mention any other rights of consumers of works except for fair use.<ref>[https://www.techdirt.com/articles/20120227/03453017886/there-can-be-no-balance-entirely-unbalanced-system-copyright.shtml There Can Be No 'Balance' In The Entirely Unbalanced System Of Copyright] – Techdirt, Mike Masnick, 1 March 2012</ref>

There is a legal debate about whether the U.S. Fair Use doctrine is lawful under the [[Three-step test]].<ref>http://heinonline.org/HOL/LandingPage?handle=hein.journals/cjtl39&div=9&id=&page=</ref>

== History ==
{{refimprove section|date=September 2011}}
[[File:Joseph Ferdinand Keppler - The Pirate Publisher - Puck Magazine - Restoration by Adam Cuerden.jpg|'' The Pirate Publisher—An International Burlesque that has the Longest Run on Record'', from ''[[Puck (magazine)|Puck]]'', 1886, satirizes the ability of publishers to take works from one country and publish them in another without paying the original authors.|thumb|350px]]
The Berne Convention was developed at the instigation of [[Victor Hugo]] of the [[Association Littéraire et Artistique Internationale]]. Thus it was influenced by the French "[[French copyright law|right of the author]]" (''droit d'auteur''), which contrasts with the [[Common Law|Anglo-Saxon]] concept of "copyright" which only dealt with economic concerns. Under the Convention, copyrights for [[creative works]] are automatically in force upon their creation without being asserted or declared. An author need not "register" or "apply for" a copyright in countries adhering to the Convention. As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work and to any [[derivative work]]s, unless and until the author explicitly disclaims them or until the copyright expires. Foreign authors are given the same rights and privileges to copyrighted material as domestic authors in any country that ratified the Convention.

Before the Berne Convention, national copyright laws usually only applied for works created within each country. So for example a work published in the United Kingdom by a British national would be covered by copyright there, but could be copied and sold by anyone in France. Dutch publisher [[Albertus Willem Sijthoff]], who rose to prominence in the trade of translated books, wrote to Queen [[Wilhelmina of the Netherlands]] in 1899 in opposition to the convention over concerns that its international restrictions would stifle the Dutch print industry.<ref name="Publishers-Circular-1899">{{cite web|url=https://books.google.com/books?id=IGtNAAAAYAAJ&pg=PA597&lpg=PA597&dq=Albertus+Willem+Sijthoff|title=The Netherlands and the Berne Convention|page=597|work=The Publishers' circular and booksellers' record of British and foreign literature, Vol. 71|publisher=Sampson Low, Marston & Co.|accessdate=2010-08-29|year=1899}}</ref>

The Berne Convention followed in the footsteps of the [[Paris Convention for the Protection of Industrial Property]] of 1883, which in the same way had created a framework for international integration of the other types of intellectual property: patents, trademarks and [[industrial design]]s.

Like the Paris Convention, the Berne Convention set up a bureau to handle administrative tasks. In 1893 these two small bureaux merged and became the [[United International Bureaux for the Protection of Intellectual Property]] (best known by its French acronym BIRPI), situated in Berne. In 1960, BIRPI moved to [[Geneva]], to be closer to the United Nations and other international organizations in that city. In 1967 it became the [[World Intellectual Property Organization]] (WIPO), and in 1974 became an organization within the United Nations.

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

The [[World Intellectual Property Organization Copyright Treaty]] was adopted in 1996 to address the issues raised by information technology and the Internet, which were not addressed by the Berne Convention.

=== Adoption and implementation ===
{{globalize|date=December 2013|section|}}
{{main|List of parties to the Berne Convention}}

The first version of the Berne Convention treaty was signed on 9 September 1886, by [[Belgium]], [[France]], [[Germany]], [[Haiti]], [[Italy]], [[Liberia]], [[Spain]], [[Switzerland]], [[Tunisia]], and the [[United Kingdom]].<ref>{{cite book|last1=Solberg|first1=Thorvald|title=Report of the Delegate of the United States to the International Conference for the Revision of the Berne Copyright Convention, Held at Berlin, Germany, 14 October to 14 November 1908|date=1908|publisher=Library of Congress|location=Washington, D.C.|page=9}}</ref> They ratified it on September 5, 1887.<ref name="Contracting parties">{{cite web|title=Contracting Parties > Berne Convention (Total Contracting Parties : 173)|url=http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15|website=WIPO - World Intellectual Property Organization|publisher=WIPO|accessdate=4 April 2017}}</ref>

Although the United Kingdom ratified the convention in 1887, it did not implement large parts of it until 100 years later with the passage of the [[Copyright, Designs and Patents Act 1988]].

The United States [[accession|acceded]] to the convention on November 16, 1988, and the convention entered into force for the United States on March 1, 1989.<ref>http://www.state.gov/documents/organization/264509.pdf</ref><ref name="Contracting parties" />
The United States initially refused to become a party to the Convention, since that would have required major changes in [[United States copyright law|its copyright law]], particularly with regard to [[Moral rights (copyright law)|moral rights]], removal of the general requirement for registration of copyright works and elimination of mandatory copyright notice. This led first to the U.S. ratifying the [[Buenos Aires Convention]] (BAC) in 1910, and later the [[Universal Copyright Convention]] (UCC) in 1952 to accommodate the wishes of other countries. 
With the WIPO's Berna revision on Paris 1971,<ref name="berna1971">WIPO's "Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)", http://zvon.org/law/r/bern.html</ref> many other countries  joined the treaty, as expressed by [[Brazil]] federal law of 1975.<ref name="br1975">Brazilian's Federal Decree No. 75699 of May 6, 1975. [http://www.lexml.gov.br/urn/urn:lex:br:federal:decreto:1975-05-06;75699 urn:lex:br:federal:decreto:1975;75699]</ref>

On 1 March 1989, the U.S. [[Berne Convention Implementation Act of 1988]] was enacted, and the U.S.&nbsp;Senate advised and consented to ratification of the treaty, making the United States a party to the Berne Convention,<ref name="NYT1988">{{cite news | url=https://www.nytimes.com/1988/10/21/arts/senate-approves-joining-copyright-convention.html | title=Senate Approves Joining Copyright Convention | first=Irvin | last=Molotsky | work=[[The New York Times]] | date=21 October 1988 | accessdate=22 September 2011}}</ref> and making the Universal Copyright Convention nearly obsolete.<ref>{{cite book |last=Fishman |first=Stephen |title=The Copyright Handbook: What Every Writer Needs to Know |year=2011 |publisher=Nolo Press| isbn=978-1-4133-1617-9 |oclc=707200393 |page=332 |quote=The UCC is not nearly as important as it used to be. Indeed, it's close to becoming obsolete}}</ref> Except for extremely technical points not relevant, with the accession of Nicaragua in 2000, every nation that is a member of the Buenos Aires Convention is also a member of Berne, and so the BAC has also become nearly obsolete and is essentially [[deprecated]] as well.{{who|date=November 2014}}

Since almost all nations are members of the [[World Trade Organization]], the [[Agreement on Trade-Related Aspects of Intellectual Property Rights]] requires non-members to accept almost all of the conditions of the Berne Convention.

As of September 2016, there are 172 states that are parties to the Berne Convention. This includes 170 [[UN member states]] plus the [[Holy See]] and [[Niue]].
{{anchor|usage}}

== See also ==
* [[Berne Convention Implementation Act of 1988]]
* [[Berne three-step test]]
* [[Buenos Aires Convention]]
* [[List of parties to international copyright agreements]]
* [[Official text copyright]]
* [[Public domain]]
* [[Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations]]
* [[Universal Copyright Convention]]
* [[World Trade Organization Dispute 160]]

==References==
{{Reflist|colwidth=30em}}

== External links ==
{{Wikisource}}
{{Wikiversity}}

* The full text of the [http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=283698 Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979)] {{ref-en}} in the [[WIPO Lex]] database — official website of [[WIPO]].
* [http://www.wipo.int/treaties/en/ WIPO-Administered Treaties] {{ref-en}} in the [[WIPO Lex]] database — official website of [[WIPO]].
* [http://zvon.org/law/r/bern.html The 1971 Berne Convention text] – fully indexed and crosslinked with other documents
* [http://www.copyright.gov/circs/circ38a.pdf U.S. Copyright office list of countries having copyright relations with the United States (including list of Berne Union countries)]
* [http://www.peteryu.com/intip/bciahr.pdf USA House of Representatives Report of the Berne Convention Implementation Act of 1988, H.R. Rep. No. 100-609 (1988)] gives a brief overview of the successive modifications to the Berne Convention.
* Texts of the various Berne Convention revisions:
** [http://www.oup.com/uk/booksites/content/9780198259466/15550015 1886 Berne Act]
** [http://www.oup.com/uk/booksites/content/9780198259466/15550016 1896 Paris Additional Act]
** [http://www.oup.com/uk/booksites/content/9780198259466/15550017 1908 Berlin Act]
** [http://www.oup.com/uk/booksites/content/9780198259466/15550018 1914 Additional Protocol]
** [http://www.oup.com/uk/booksites/content/9780198259466/15550019 1928 Rome Act]
** [http://www.oup.com/uk/booksites/content/9780198259466/15550020 1948 Brussels Act]
** [http://www.oup.com/uk/booksites/content/9780198259466/15550021 1967 Stockholm Act]
** [http://www.oup.com/uk/booksites/content/9780198259466/15550001 1971 Paris Text]

{{Copyright law by country|state=expanded}}
{{Victor Hugo}}

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