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By Colin Lazzerini

From Berne to Bono with TRIPS in between

1. Berne and the Basics

International Copyright Protection.

Basically, we owe it all to French poet and novelist Victor Hugo.

The famous author of “The Hunchback of Notre Dame" and “Les Miserables" founded the Association Littéraire et Artistique Internationale in 1878 to campaign for an international convention for the protection of creators' rights. The efforts of the Association were rewarded eight years later, on September 9th 1886, with the adoption of the Berne Convention for the Protection of Literary and Artistic Works.

Berne remains the basis of our international copyright protection.

The United States was very slow to get with the programme, though. It took them over a century. And the story of how they did eventually get there illustrates significant transatlantic differences in legal perspectives on rights.

America has always been ambivalent about the notion of intellectual property, both constitutionally and philosophically. According to founding democratic theories, ideas were expected to flow freely and become the possession of everyone. Their legal framework is thus an expression of this desire to limit any exclusive rights that authors have over their works and discoveries, while preserving the freedom of others to exploit and develop them.

That's why U.S. copyright was protected for a fixed, renewable term. In 1790, the term lasted 14 years and could be renewed only once. Between 1831 and 1909, this maximum allowable term of 28 years was doubled.

Once the term was completed, of course, a work entered the public domain.

In comparison, Berne offered protection lasting until 50 years after an author's death.

Also, under US legal procedures, a work had to contain a formal copyright notice and be registered at the Copyright Office. Under the Berne Convention, however, no such requirements were necessary for copyright to exist - if you made it, then it was unquestionably yours: simple.

But the U.S. was unwilling to modify its own domestic copyright law just in order to conform with the conditions of some foreign-devised system, especially one built on the totally alien and equally fundamental French principle of “moral rights".

“Moral Rights" - it's a crucial concept in copyright, and one we'll return to. For the moment, let me get away with defining them as the absolutely inalienable rights of artists over the work they create and the uses to which it's put. Remember that. We'll get back to it later.

Generally speaking, the European tendency has been to give greater priority to the interests of the artist, whereas, in the tricky legal job of balancing public access with private rights, the New-World approach leans more favourably towards access to ideas and the freedom to use them.

Anyway.

It was the rise of late twentieth century corporatism that changed things.

2. TRIPS & Globalisation

Towards the close of the last century, multinationals became increasingly concerned to maximise their intellectual property privileges around the world. Consistent and co-ordinated pressure from these heavy corporations - mainly pharmaceutical giants - succeeded in making rights issues a core priority of 1980s US trade policy. They nailed their interests very firmly on the agenda of the Uruguay round of negotiations for the General Agreement on Trades and Tariffs (GATT) from 1986 onwards.

Such intense lobbying resulted in the U.S. finally changing its national copyright law as required and joining Berne in 1988. And, by the end of GATT, an agreement known as TRIPS (Trade Related Aspects of Intellectual Property Rights ) had been added to the “Marrakesh Agreement Establishing the World Trade Organisation", signed in Morocco on 15th April 1994.

By making ratification of TRIPS a requirement of WTO membership, the World Trade Organisation can exert huge power and influence over any member-state or serious wannabe who threatens to step out of line on the basic rules laid out in “Annex 1c: Agreement on Trade Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods “...

"“With respect to copyright, parties are required to comply with the substantive provisions of the Berne Convention for the protection of literary and artistic works""

TRIPS marked the move to the big major globalisation of copyright, but the basic ideas still go back to Berne and Victor Hugo.

1. Copyright must be granted automatically, and not based upon any "formality", such as registrations or systems of renewal.
2. Copyright terms must extend to 50 years after the death of the author (with some few differences for film and photography and broadcasting).

NOTE:

Already, by the time of TRIPS, the length of term in Europe was being extended to the life of the author plus 70 years.

Thanks to Sonny Bono and Mickey Mouse, the U.S. would soon follow suit