INFLUENCE OF BERNE CONVENTION ON COPYRIGHT LAWS IN INDIA
INTRODUCTION
The Berne Convention known as Berne Convention for the Protection of Literary and Artistic Works, 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.[1]
It was first ratified in 1886 as an agreement to honor the rights of all authors who are citizens of countries that are party to the convention. The latest version of the convention is the Paris Act of 1971. This convention is now administered by the World Intellectual Property Organization, (WIPO). The Berne Convention evolved and was updated several times, as it could not adapt to new technological changes. Also, with the changing legal necessities of the world, the international treaties such as Trade Related Aspects of Intellectual Property Rights (TRIPS), World Intellectual Property Organization (WIPO) and General Agreement on Tariffs and Trade (GATT) came in force, which was based on the Berne Convention.
Before the ratification of this historical convention, countries have to sign a bilateral agreement with other countries in order to protect but after this convention, which allows a multilateral agreement provides blanket protection of a copyrighted work of its member countries.
It would be difficult to write about the Berne Convention without mentioning the decisive role ALAI played in the establishment of this convention. It was the legal experts of ALAI who drew up a preliminary draft for a convention. Among them, two barristers of the Paris Court—Eugène Pouillet and Edouard Gunet—played a fundamental role.[2] ALAI was created in Paris in 1878 on the initiative of the SOCIÉTÉ DES GENS DE LETTRES, with Victor Hugo as Honorary President. Its primary objective was to initiate the creation of an international agreement for the protection of literary and artistic property.[3] Victor Hugo is known as the father and instigator of this historical convention.
It is pertinent to mention here that the establishment of WIPO (World Intellectual Property Organization) in 1967 and the introduction of TRIPS (Trade-related aspects of intellectual property rights) Agreement in the year 1994 by the World Trade Organization played a very important role in further shaping and expanding the regulations in the field of intellectual property rights.[4] The TRIPS agreement added some new obligations and duties which were not there in the Berne convention and made member countries of the WTO to comply by the regulations of such convention. And, the World Intellectual Property Organization was created by the WTO to administer, supervise and provide protection to the intellectual property or works of its member nations over the world.
BASIC PRINCIPLES OF CONVENTION
The Berne Convention for the Protection of Literary and Artistic Works (1886) is based on three basic principles and contains several provisions defining the minimum protection to be granted, as well as special provisions, are available for developing countries-
(a) The member nation has to protect the works of other members of the union in the same manner as it protects the intellectual works of their authors (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 grants for a longer duration of protection than the least 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
CONVENTION & INDIA (DEVELOPING COUNTRIES)
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Issue
For most of the under-developed nations, the Berne Convention served as a limitation on the local copyright laws, rather than useful legislation.[5] This was apparent from the fact that nations such as India along with other developing nations after getting independence from their colonial masters demanded changes in strict provisions of the Berne convention in views to copyright laws. The Berne Convention was drafted, created, and established by developed countries such as the U.K, France, Germany, Belgium, Spain, and Switzerland, without taking into notice the needs and situations of the developing nations.[6] Here, one has to agree that due to no representative from developing nations in the making of this historic convention, the challenges and problems of such countries were not addressed. Thus, developing nations stood united and almost decided to walk out from the convention, when their demands remained neglected.
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Problem with India after independence.
India at that time was a big importer of copyright work, especially literature and as per the rules of the Berne convention besides, the cost of importing it had to now pay royalties to foreign authors. Hence, the high cost of books led to their shortage of supply. Whereas had India came out of the convention, it would have reduced the cost manifolds, by not paying the royalties and getting local printers to publish the work. Due to the high cost of importing, another very important concern which the Indian education system faced was the introduction of standard course books in schools, colleges, and Universities. Hence, India struggled in creating an economical way of promoting and distributing knowledge, especially in the field of science and technology which was expanding very quickly. Therefore, India wanted reformation in these areas and assistance from other countries to put forth its demands
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The 1967 Stockholm Revision of the Berne Convention Protocol Regarding Developing Countries.
For developing countries, who are members of the Berne Convention could now decide on limit / extend of protection for a copyright work, provided it is not less than 25 years, provision for compulsory licensing was added. Most importantly, Article I (e)[7] of the protocol allowed replicating, translating, performing, and different ways of using educational material, without any given restrictions that, the authors of such learning are rewarded an amount which is normally expected and paid to authors of such that nation.
Article I (c)[8] of the Stockholm protocol permitted the replication of information with regards to educational and cultural material that was made permissible, although translations were subject to a requirement of compulsory licensing.
BERNE CONVENTION & COPYRIGHT LAWS (INDIA)
Copyright of works first made or published in a country or the author of which was, at the date of such publication, a national of a country who is Member of the Berne Convention, or Universal Copyright Convention or World Trade Organization, are protected in India as if they are Indian works, based upon section 40 of the Indian Copyright Act (1957) read with International Copyright Order, 1999. Subsequently, all provisions of the Indian Copyright Act (1957) will apply as if they are Indian works.
The TRIPS Agreement protects “computer programs” whether in source or object code protected as literary works under [the] Berne Convention. the Agreement rental rights are provided to authors and their successors in title to either authorize or prohibit the commercial rental of originals or copies of their copyright works in computer programs, where the computer program is the essential object of rental.[9] This rental rights is enforced in India under Section 14 (b)(ii) & Section 14 (b)(i) of the Indian Copyright Act 1957.
Copyright concerning the computer programs or a substantial part thereof implies the exclusive right to do or authorize, the reproduction of the work into any material form including the collecting of it in any medium by electronic means, to issue copies of, to perform or communicate their work to the public, to make any cinematograph movie or sound recording regarding the work, to make any translation of the work, to make any adaptation of the work, or do any of the above with a translation or an adaptation regarding work.
Copyrighted work (other than photographic work or applied art) calculated on a basis of “other than the life of a natural person” shall not subsist for less than 50 years from the end of the calendar year of its authorized publication or else within 50 years of making the work or 50 years from the end of the calendar year of making. Under Berne, the term is the life of author plus 50 years.62 Articles 7(2) and (3) provide that the term of protection for cinematographic and anonymous or pseudonymous work expires 50 years after work becomes lawfully available to the public. In the case of photographs and applied art, it spans to at least the end of 25 years from making the work.
Under Section 22 of the Indian Copyrights Act (1957), the term of protection extends until sixty years from the beginning of the calendar year following the year in which the author dies in the case of literary, dramatic, musical or artistic works (excluding photographs) published within the life of the author. A term of sixty years shall apply for anonymous and pseudonymous works in the case of literary, dramatic, musical or artistic works and posthumous works in the case of literary, dramatic, musical works or engravings and photographs and cinematographic film and records from the beginning of the calendar year following the year in which they work (or photograph) is first published under Sections 23, 24, 25, 26 and 27 respectively.
Case laws
- The Chancellor, Masters & Scholars of the University of Oxford & Ors. v Rameshwari Photocopy Services & Anr. (CS(OS) 2439/2012), Delhi High Court
A shop named Rameshewari (Defendant no.1) within the premises of Delhi University, providing photocopy services was accused of copyright law violation, as they were printing course books of various chapters from different sources and publications into a single booklet. The Delhi University (Defendant no.2) was also accused and made a party to the suit as its library was issuing books from which the photocopies were made, besides that the professors were recommending to purchase the photocopied coursebook because it was tailored according to the Syllabi of the term and the students did not have to refer to different books, herby saving a lot of their time.
The suit was filed before the Honorable Delhi High Court in the year 2012, by the publishers (Plaintiffs) namely Oxford University Press, Cambridge University Press United Kingdom, Cambridge University Press India Pvt. Ltd., Taylor & Francis Group, United Kingdom and Taylor & Francis Books India Pvt. Ltd.
The plaintiffs also applied for an interim injunction to stop the sale of such unauthorized material and the Delhi High Court (Single Bench) granted the injunction and passed an order to stop such authorized sale by the photocopying services until the final decision is made on the case.
The Defendants thereafter preferred an appeal before the Divisional Bench of the Delhi High Court and argued that they are copying the information and printing it for educational purpose and therefore are protected under section 52(1)(a) and 52(1)(h) of the copyright act 1957. The Division bench[10] vacated the stay order with a reason that the distribution of copied course work is not a violation of copyright law when the purpose or use of such information is for education and remanded back the matter to Single Bench for a final decision. Judge Justice Rajiv Sahai after carefully analyzing the facts pronounced the judgment on 16th of September 2016 in favor of Defendants, contending that replicated production of copyright work as per the instructions of the tutor for instructing students for term subject, falls within the exception of copyright law given under section 52(1) (h) of the copyright act, 1967. It is very interesting to note that above-mentioned section is completely in line with the guidelines of the Berne Convention, especially with its revision which took place at Stockholm in 1967, wherein Article 1 (e) restricts claiming of copyright protection when such literary or artistic work is used for research, study or any in any field of education.
- Burlington home shopping Pvt. Ltd. v. Rajnish Chibber and Anr, 1996 Patent and Trade Mark Reporter, 1995 IVAD Delhi 732
Courts in India have recognized collection of databases in electronic format and protected them under the Copyright Act
REFERENCES
[1] Berne Convention for the Protection of Literary and Artistic Works (1886), available at: https://www.wipo.int/treaties/en/ip/berne/summary_berne.html#_ftn1 (last visited on May 29, 2020)
[2] 3Monthly Review of the World Intellectual Property Organization, ‘Copyright’ (WIPO, 1987) 2 41 available at: https://www.wipo.int/edocs/pubdocs/en/copyright/120/wipo_pub_120_1987_02.pdf (last visited on May 29, 2020)
[3] Association Literarire Et Artistique Internationale available at: https://www.alai.org/en/information/history.html (last visired on May 28, 2020)
[4] World Trade Organization, available at https://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm#TripsAndConventions (last visired on May 28, 2020)
[5] Prashant Reddy T and Sumathi Chandrashekaran, ‘Create, Copy, Disrupt: India’s Intellectual Property Dilemas’ (Oxford, 2017).
[6] Paul Goldstein, ‘ International Intellectual Property Law Cases and Materials’ 158 (Foundation Press, 2nd Edn, 2008)
[7]The 1967 Stockholm Revision of the Berne Convention Protocol Regarding Developing Countries. https://www.keionline.org/24962 (last visired on May 30, 2020)
[8] Ibid
[9] Article 11, TRIPS
[10] De Coding Indian Intellectual Property Law, The Chancellor, Masters & Scholars of the University of Oxford & Ors v. Rameshwari Photocopy Services & Ors (Du Photocopy Case Spicy IP) December 2007 https://spicyip.com/resources-links/du-photocopy-case
Author: Nishtha .,
Trinity institute of professional studies