The Art of Law Series: Convention of Berne. The First Act to Protect Artistic Works
Foreword
In the grand mosaic of human culture, where art reflects the zenith of human creativity and law the structure of societal order, their intersection forms a compelling narrative of protection, rights and ethical considerations. The realm of art, with its boundless expressions, serves not only as a mirror reflecting societal values, mores and collective memory, but also as a vanguard challenging the status quo and pushing the boundaries of what is socially and morally acceptable. In contrast, law, with its codified norms and principles, seeks to establish order, protect rights and resolve conflicts. At the crossroads of these two domains lies a dynamic and often contentious dialogue about the value of art, the rights of creators and the role of law in protecting these elements in a rapidly evolving digital age.
The protection of art and artists through legal means is not a modern concept but one that has evolved over centuries, adapting to new forms of artistic expression and technological advancements. From the earliest copyright laws designed to protect literary works to contemporary debates over digital rights management and the moral rights of artists, the legal system has been instrumental in defining how art is created, distributed and preserved. This legal scaffolding not only ensures that artists can earn a livelihood from their creations but also plays a crucial role in the cultural preservation of art for future generations.
However, this relationship is fraught with challenges. The very nature of art, constantly evolving and pushing boundaries, often outpaces the legal frameworks designed to protect it. Issues such as copyright infringement, plagiarism and the unauthorized use of artistic works in the digital realm highlight the ongoing struggle to balance the rights of artists with the public’s access to art. Furthermore, the legal system’s ability to adapt to these challenges is crucial in maintaining this balance, ensuring that protection does not stifle creativity.
In essence, the dialogue between art and law concerning the protection of art and artists is a reflection of the broader human condition, encapsulating our desires for expression, innovation and the need for boundaries. As we navigate this complex relationship, let us remember the essential role that both art and law play in enriching our lives and shaping the contours of our collective cultural heritage. This research series consists of seven articles, each dedicated to exploring the intersection between art and law, underscoring the pivotal role that legal frameworks play in safeguarding the sanctity of art and the rights of artists.
The Art of Law Series: Convention of Berne: The First Act to Protect Artistic Works
The Art of Law Series: Copyright and Trademark Laws: Protecting Artists
The Art of Law Series: Stolen Art and Modern Restitution in International Law
The Art of Law Series: The Italian Cultural Heritage Law and the EU
The Art of Law Series: Artificial Intelligence and Legal Frameworks
The Art of Law Series: The Future of Art’s Law: Copyright’s Challenge and Regulatory Action
The Art of Law Series: Recent Notable Legal Battles in Art
Introduction
In the absence of global norms or protocols in the late 19th century, creators encountered significant challenges in safeguarding their rights abroad. The Berne Convention of 1886 endeavored to address this issue by formulating several principles aimed at protecting intellectual property rights and copyrights of content creators. The doctrine of national treatment is among the foundational principles that support the Berne Convention.
It requires that authors and artists of literary and artistic works receive equivalent legal protection in foreign nations as they do in their country of origin. This implies that if a work is granted copyright protection in one jurisdiction, it must also receive protection in all other signatory countries of the Convention on the Protection of Literary and Artistic Works. Since its inception, the Berne Convention has undergone several rounds of revision, with the latest occurring in 1979.
These revisions were implemented to address evolving creator needs and technological advancements. The Convention's coverage was broadened to encompass additional categories of works and alternative methods of protection. The Berne Convention for the Protection of Literary and Artistic Works, commonly referred to as the "Berne Accord," is an international pact governing intellectual property rights. It was initially ratified in Berne, Switzerland in 1886 and delineates various aspects of contemporary copyright law. It introduced the principle that copyright is established the moment a work is "fixed" or materialized into a tangible form, without necessitating registration.
Convention of Berne: The First Act to Protect Artistic Works
The Berne Convention was a groundbreaking international treaty designed to protect literary and artistic works across borders by harmonizing copyright laws. However, with the world progressing into a digital age, this historical framework has encountered significant challenges. Technological advancements have transformed the way creative works are produced, distributed, and consumed, forcing legal systems to adapt. Despite its longevity and importance in shaping global intellectual property protection, the Berne Convention continues to face increasing pressure to address the complexities introduced by modern technology.
Furthermore, the rapid development of new technologies, such as artificial intelligence (AI), has raised questions the Berne Convention was never designed to address. AI-generated content, for example, presents a legal grey area. In the event that an AI system is responsible for the creation of a work of art or musical composition, it is necessary to determine which entity is entitled to the associated copyright. The Berne Convention, based on human creativity, does not account for works generated by machines, leaving courts and legislators scrambling for answers. In the recent case of Naruto v. Slater, where the debate revolved around whether a monkey, Naruto, could hold copyright for a selfie, the courts ultimately ruled that animals could not hold copyrights under the law. Although not directly related to AI, this case highlights the challenges posed by non-human creators in copyright law.
Digital piracy is another major challenge testing the Berne Convention in the contemporary era. The proliferation of peer-to-peer sharing networks, torrent sites, and streaming platforms has made unauthorized access to copyrighted material commonplace. While the convention's principles still apply, enforcing them across multiple jurisdictions, with varying degrees of adherence and enforcement capabilities has proven increasingly complex. For example, the case of The Pirate Bay has shown how difficult it is to shut down or regulate platforms that facilitate mass copyright infringement. The Pirate Bay trial constituted a combined criminal and civil prosecution in Sweden against four individuals accused of facilitating copyright infringement through the torrent tracking website, The Pirate Bay. The criminal charges were backed by a coalition of intellectual property rights holders, spearheaded by the International Federation of the Phonographic Industry (IFPI), who also pursued separate civil claims for compensation from The Pirate Bay’s proprietors. Even after numerous lawsuits and court orders, such platforms continue to operate in some form or another, demonstrating the limitations of the convention's reach in the digital realm.
Historical Background of the Berne Accord
At the end of the 19th century, the landscape of playwriting underwent a profound transformation, shifting away from the traditional aim of pleasing a patron or acting as a conduit for divine expression. Instead, it evolved into a vehicle for individual artists to convey their creations directly to the public. This departure from previous norms challenged the entrenched dominance of the "media" — encompassing actors and theater owners. French playwrights and German authors spearheaded this movement by contesting the monopoly held by producers and actors. They posited that their works were intended for public consumption even prior to being regarded as personal property.
As far back as 1841, the French poet Lamartine performed in the Chamber of Deputies in advocation for the establishment of "an international law accepted from country to country, even in the absence of any reciprocity." Across the 18th century, detractors of this magnanimous stance argued that unilateral generosity surpassed the confines of liberalism. Presently, decolonial scholars perceive this universalism as emblematic of an imperialistic endeavor, despite its roots in Enlightenment principles.
In his presidential address to the International Literary Congress on June 17, 1878, Victor Hugo stated:
“It is not for any personal interest that you are gathered here; it is for the universal good. What is literature? It is the setting in motion of the human spirit. […] Literary property is of public interest. All the old monarchical legislations denied and still deny literary property. For what purpose? To enslave. A writer who owns property is a free writer. To take away his property is to take away his independence.
Hence this singular sophism, which would be childish if it weren’t treacherous: thought belongs to everyone, therefore it cannot be property, therefore literary property does not exist! This is a strange confusion. First, it confuses the faculty of thinking, which is general, with thought, which is individual; thought is the self. Then, it confuses thought, an abstract thing, with the book, a material thing. The writer’s thought, as a thought, escapes any hand that might try to seize it; it flies from soul to soul; it has that gift and strength. But the book is distinct from thought; as a book, it is seizable, so seizable that it is sometimes seized!
The book is the product of printing, belongs to industry, and, in all its forms, is the driving force behind a vast commercial movement. It is sold and bought. It is property, value created and not acquired, wealth the writer adds to the national wealth.”
Another transformative shift in the art world set the stage for modern legal frameworks like the Berne Convention for the Protection of Literary and Artistic Works: the Impressionists' break from the official French Salon. The Anonymous Society of Painters, Sculptors, and Engravers in Paris, later known as the Impressionists, held its exhibition on 15 April 1874, the first to be self-promoted. It underscored new era where artists actively asserted their autonomy, challenging established institutions and reshaping perceptions of creative control and the marketability of art.
This autonomy was vital for the development of copyright law. By choosing alternative venues and promoting their work outside of formal structures, the Impressionists shifted ideas around both authorship and intellectual ownership. Their actions highlighted the necessity of international protections, as the increasing popularity of art and literature also elevated the risk of unauthorized reproductions. Artists grew more aware of the need to protect their moral and economic rights, influencing legislative efforts to create laws that could offer artists control over how their work was used and shared.
The momentum generated by this movement reached a global audience at the 1878 World Exhibition, where the need for universal copyright protection became increasingly evident. Just a few years later, in 1886, the Berne Convention was established creating an international framework to protect creative works and ensure that artists could benefit from their intellectual property on a global scale. The Impressionists’ drive for creative freedom not only transformed the art world but also laid the groundwork for legal protections that continue to shape how society values and protects artistic expression today.
L’Association Littéraire et Artistique Internationale – ALAI
The 1878 World Exhibition precipitated the formation of the International Literary and Artistic Association (ALAI), a mere ten days later. The ALAI was established in Paris in 1878 under the auspices of the Society of Men of Letters of France, with Victor Hugo serving as its honorary president. Its principal objective pertained to the initiation of an international accord aimed at safeguarding literary and artistic property rights. The ALAI convened a gathering of writers, artists and publishers in Berne in 1883, culminating in the inaugural diplomatic assembly on intellectual property, known as the Berne Convention, convened on 9 September 1886.
The Association was significantly influenced by the atmosphere and achievements of the 1878 World Exhibition in Paris, a world exposition that celebrated industrial, artistic, and cultural advancements from around the globe. The World Exhibition brought global attention to the artistic and intellectual achievements of numerous countries, putting spotlight on the need to protect these works against unauthorized reproduction or misappropriation. This heightened awareness directly impacted artists, writers, and other intellectuals who were concerned about safeguarding their creative rights across national borders.
Eight years subsequent to its inception, on September 9th, 1886, the Berne Convention, now renowned, was ratified. Consequently, ALAI actively engaged in all deliberations leading to eventual revisions of the Convention: Paris (1887), Berlin (1908), Rome (1928), Brussels (1948), Stockholm (1967) and Paris (1971). The ALAI represents an autonomous scholarly organization committed to the examination and deliberation of legal matters, emerging in relation to the safeguarding of the interests of creative individuals. Presently, copyright and performers' rights constitute integral components of fundamental human rights, as articulated in various international treaties, declarations and proclamations.
Since its establishment in 1878 by the esteemed French luminary Victor Hugo in advocation for the global acknowledgment of legal protections afforded to authors for their intellectual endeavors, the association executes its mission by facilitating the broader international dissemination of creative works, thus contributing to the enrichment of humanity's cultural heritage. This aspiration was initially realized with the adoption of the Berne Convention. Since its inception, ALAI has continued to exert significant influence in the formulation of international legal frameworks pertaining to copyright and performers' rights, notably through the organization of congresses and symposiums dedicated to the comprehensive examination of various facets of copyright law.
ALAI endeavors to nurture creativity by ensuring the preservation of the moral and economic rights of creators in a general sense, a commitment also underscored by Article 27 of the Universal Declaration of Human Rights. ALAI does not advocate for or represent individual authors, nor does it align itself with specific corporate entities or industrial factions. Instead, ALAI stands as a broad-based, independent entity, receptive to the diverse perspectives espoused by the myriad of national chapters and individual members spanning the globe. Its membership encompasses individuals from diverse professional backgrounds and pursuits, ranging from academic scholars and legal practitioners specializing in copyright law to professionals within the media sector and governmental or intergovernmental agencies.
Moreover, since its foundation, ALAI has maintained a symbiotic relationship with international institutions and, consequently, participated in numerous seminal occurrences within the realm of copyright law.
The Heritage of Victor Hugo
Although Victor Hugo passed away in 1885, his commendable discourse elucidates the foundational principles underpinning the Berne Convention, which are distinct from issues of piracy:
The author's unfettered freedom and absolute entitlement over their work throughout the creative process and until its dissemination to the public.
The author's prerogative to freely exploit their work and reap the benefits thereof.
The public's entitlement to access the work: once it is published, the work is vested in the public domain.
Literary property is designated as being of paramount public interest. The author assumes the role of a custodian of this public interest and consequently receives remuneration for the utilization of their intellectual output.
Literary and artistic "property" is regarded as a personal privilege within a framework of obligations between the author and the public—arrangements regulated by the state in pursuit of overarching interests associated with creation and culture.
Theaters, publishers and producers operate akin to licensees for the exploitation of an author's works. Consequently, they are answerable and are only entitled to exercise their rights to the extent that they contribute to the author's creative output and provide the public with new artistic endeavors.
An exploration of the nexus between public law and copyright law, which often overlooks this relationship, would be instructive. The significance of public interest is palpable within copyright law; however, it is not solely pursued by corporate entities but also by individual creators. In the realm of public law, it is unprecedented for public interest to be subject to and constrained by the volition of a singular individual.
This historical context is essential for grasping the essence of the Berne Convention: the genesis of modern copyright emerged as a response to the hegemony of theatrical entities, the primary conduits for disseminating creative works, in order to facilitate broader accessibility to the public. This initiative effectively disentangled the work itself from its performance and subsequent reproduction. When we delve into discussions about copyright, the focal point inevitably shifts to the figure of the author. In essence, the inquiry into the nature of an author is tantamount to an inquiry into the essence of humanity itself. The Enlightenment era provides seminal insights into this exploration.
One might consult Kant's exploration of the question, "What is an author?" or delve into Schiller's contemplation on "What constitutes a book?" The inception of the Berne Convention stemmed from Victor Hugo’s International Literary and Artistic Association. Under this agreement, copyrights for artistic works are automatically upheld upon their creation, without the need for explicit assertion or declaration. Authors are not required to register or apply for copyright in countries adhering to the accord. Once their work is fixed—whether in written form or recorded on a physical medium—the author automatically holds all copyrights in the work and any derivative works, unless the author explicitly waives it or the copyright expires.
The Evolution of the Berne Convention
Foreign authors are afforded the same rights and privileges concerning copyrighted material as domestic authors in any signatory country. Prior to the Berne Convention, national copyright laws typically only applied to works originating within each respective country. The Convention followed the precedent set by the Paris Convention for the Protection of Industrial Property of 1883, which established a framework for the international integration of various forms of intellectual property. The Paris Convention, addresses industrial property comprehensively, encompassing patents, trademarks, industrial designs, utility models, service marks, trade names, geographical indications, and the prevention of unfair competition. This international treaty marked a pivotal advancement in supporting creators by providing a framework for the protection of their intellectual works across national borders. The Paris and Berne Conventions saw the creation of international bureaus (secretariats) which were merged in 1893 to form the United International Bureaux for the Protection of Intellectual Property (BIRPI), headquartered in Bern. The BIRPI relocated to Geneva in 1960 and became part of the World Intellectual Property Organization in 1967, eventually evolving into an organization within the United Nations. The final version of the Berne Accord was reached in 1914 and underwent amendment in 1979. To address issues arising from advancements in information technology and the internet that were not covered by the Berne Accord, the World Intellectual Property Organization Copyright Treaty was adopted in 1996.
The initial version of the Berne Accord was signed by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia and the United Kingdom. Although Britain signed the Accord in 1886, it did not implement it until a century later with the passage of the Copyright Designs and Patents Act of 1988. Initially, the United States declined to become a party to the Accord due to the significant changes it would entail in its copyright law, particularly concerning moral rights, the elimination of the general requirement for copyright registration and the removal of mandatory copyright notices. As a compromise, the US ratified the Buenos Aires Convention (BAC) in 1910 and later the Universal Copyright Convention (UCC) in 1952 to accommodate the preferences of other countries.
The Buenos Aires Convention (BAC) of 1910 and the Universal Copyright Convention (UCC) of 1952 served as alternative copyright frameworks that were related to, yet distinct from, the Berne Convention. The BAC, a regional treaty in the Americas, provided basic protections but lacked Berne’s robust requirements. The UCC, established by UNESCO, aimed to create a more flexible international standard that accommodated countries like the United States, which had hesitated to join Berne due to its strict "automatic protection" principle and prohibition of formalities. Ultimately, the UCC bridged copyright differences internationally, but Berne has since become the global standard.
However, with the enactment of the US Berne Accord Implementation Act of 1988 on 1 March 1989, the US became a party to the Berne Accord, rendering the Universal Copyright Convention nearly obsolete. With the accession of Nicaragua in 2000, every nation that was a member of the BAC also became a member of Berne, leading to the obsolescence of the BAC. By 2000, all BAC countries were also Berne members, making Berne the global standard and negating the need for BAC and UCC frameworks.
The Berne Convention serves as a foundational framework for numerous national and international copyright statutes. The impetus for such international copyright protection emerged from burgeoning movements within Europe during the mid-19th century. Collaborative efforts between publishers, authors and governmental bodies paved the way for the convening of the 1886 convention. This convention harmonized divergent perspectives on copyright law prevalent in continental Europe and Anglophone nations. While European nations typically emphasized the primacy of authors' interests, the United States and Great Britain leaned towards prioritizing the public interest, particularly regarding foreign authors' works.
The Berne Convention reconciled these perspectives by ensuring equal treatment of both national and foreign authors within member countries, consistent with its preamble's objective to safeguard authors' rights in their literary and artistic endeavors. The rapid evolution of technology in the early 20th century, notably in formats such as sound recordings, photography and cinema, posed novel challenges to existing copyright frameworks. Consequently, revisions were undertaken during the Berlin (1908) and Rome (1928) gatherings to address these emerging complexities. The Berlin Act extended copyright protection to encompass photography, sound recordings and cinematography, while the Rome Act focused on safeguarding the moral rights of authors and facilitating broadcasters' access to literary and musical works.
Moreover, subsequent revisions in 1948, 1967 and 1971, namely the Brussels, Stockholm and Paris Acts, respectively, addressed enforcement mechanisms within member states and responded to technological advancements, particularly concerning copyright law's impact on developing nations. In 1997, a milestone was achieved with the adoption of two treaties during the World Intellectual Property Organization (WIPO) convention in Geneva. These treaties addressed the challenges posed by digital media and the Internet, marking the first substantial revision to the Berne Convention in over two decades. Notably, these revisions aimed to modernize copyright protection for films, music, software and television, especially in the context of internet distribution.
The administration of the Berne Convention falls under the purview of the World Intellectual Property Organization (WIPO), established in 1967 in Stockholm. WIPO, in collaboration with the United Nations, oversees global copyright protection for various intellectual properties, including both industrial (e.g., patents, trademarks) and copyright properties (e.g., literature, music, film).
Content of the Treaty
The Berne Accord obliges its signatories to treat the copyright of works by authors from other signatory countries on par with those of its own nationals. Apart from establishing a system of equal treatment of internationalized copyright among signatories, the agreement mandates member states to provide robust minimum standards for copyright law protection. Copyright protection under the Berne Accord must be automatic, and formal registration is prohibited. According to Article 3 of the Accord, protection applies to nationals and residents of signatory countries, as well as works first published or simultaneously published within 30 days in a signatory country. Article 4 pertains to cinematic works created by individuals headquartered or habitually residing in a signatory country, and architectural works created by individuals situated in a signatory country.
The Accord operates on the principle of "country of origin," where only the country in which the work is initially published, is deemed the "country of origin." For works simultaneously published in a signatory country and one or more non-signatory countries, the signatory country serves as the country of origin, as per Article 5 of the Accord. For unpublished works or works initially published in a non-signatory country, the author's nationality typically determines the country of origin if the author is a national of a signatory country. A pivotal aspect of the Berne Convention is its provision for automatic copyright protection. Under this framework, signatory countries are obliged to afford citizens of other member nations the same copyright protections and constraints as those extended to their own nationals. However, in instances where the creator of a work is not a citizen of a member country, and their work is utilized commercially or published within a Berne Convention member state, the extent of protection is governed solely by the copyright laws of the creator's country of origin.
The Berne Convention pertains to the safeguarding of creative works and the entitlements of their creators. Its framework is structured upon three fundamental tenets and encompasses a spectrum of regulations delineating the requisite minimum protections, alongside tailored provisions accessible to developing nations seeking their application.
The three foundational principles are as follows:
1. Works originating from a Contracting State (i.e. those produced by an author who is a citizen of said state or those initially disseminated within its borders) must receive commensurate safeguarding within each other Contracting State, akin to the protection extended to the works of its own citizens (the principle of "national treatment").
2. Protection cannot be contingent upon adherence to any procedural requirements (the principle of "automatic" protection).
3. Protection remains unaffected by the presence or absence of safeguarding in the work's country of origin (the principle of "independence" of protection). Nonetheless, if a Contracting State offers a more extensive duration of protection than the Convention's stipulated minimum and the work loses protection in its country of origin, the right to protection may be withheld following the cessation of protection in the country of origin.
Challenges of the Accord
Determining the country of origin for digital publications remains a contentious issue among legal scholars. Copyright, as per the Berne Accord, extends to all works except photographic and cinematographic works for at least 50 years after the author's death. However, parties are at liberty to extend protection terms, as exemplified by the European Union's 1993 Directive 93/98/EEC, harmonizing the term of copyright protection for photography. The Accord stipulates a term of 25 years of protection from the year the photo was made and 50 years after the first showing or creation for cinematography if not shown within the initial 50 years.
Countries operating under older revisions of the treaty may opt for their own protection terms, and certain types of works may be subject to shorter terms. In instances where the author is unknown, either deliberately anonymous or using a pseudonym, the Accord provides for a term of 50 years after publication. However, if the author's identity is later revealed, the copyright term for known authors applies. Although the Accord dictates that the copyright law of the country where copyright is claimed should apply, Articles 7 and 8 state 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," meaning an author is typically not entitled to longer copyright abroad than at home, even if foreign laws stipulate a longer term. This is commonly referred to as the rule of a shorter term, although not all countries have embraced this principle.
The Berne Convention permits countries to allow "fair use" of copyrighted materials across various media, including publications and broadcasts. This concept extends to digital communication, where internet service providers (ISPs) are exempt from liability under the "mere conduit" principle, as clarified in the Agreed Statement of the WIPO Copyright Treaty (1996). Thus, ISPs facilitating user communications are not deemed to communicate infringing content. However, critics argue that the Convention lacks sufficient consumer rights protections beyond fair use.
The US and EU Copyright Legislation Nowadays
Copyright in its simplest form denotes a proprietary entitlement bestowed upon authors, affording them dominion over the control, safeguarding and exploitation of their artistic creations. The process of obtaining copyright has become notably straightforward in contemporary times. The requirements for eligibility merely entail originality, a modicum of creativity and the fixation of the work in a tangible medium of expression. Thus, upon the inception of a creation, it typically garners copyright protection without necessitating further actions such as federal registration, remittance of fees, publication or other procedural formalities. The legal foundation of copyright law in the United States resides within Title 17 of the United States Code, albeit acknowledging potential variations in the interpretation of its provisions across different judicial circuits.
The United States Copyright Office disseminates educational resources, colloquially known as "circulars," catering to a broad audience seeking enlightenment on copyright law.
Three fundamental requisites underpin the eligibility of a work for copyright protection in the US:
Originality: A work must demonstrate originality, implying that it is not a derivative or replication of preexisting material.
Creativity: The threshold for creativity, as articulated by the U.S. Supreme Court, is modest, necessitating a mere "modicum" of inventive expression.
Fixation: Copyright protection necessitates fixation, denoting that the work is captured or recorded in a tangible medium, thereby precluding purely transitory manifestations.
The criteria for satisfying these prerequisites are notably undemanding, with the majority of works readily meeting the prescribed standards.
Copyright owners possess the prerogative to either wholly or partially transfer their copyrights to third parties, or alternatively, grant licenses enabling others to utilize their works while retaining ownership. It is imperative to note that any transfer of copyright ownership must be executed in writing and duly authenticated by the proprietor to be deemed valid under the law.
The European Union’s copyright framework consists of 13 directives and two regulations that harmonize the essential rights of authors, performers, producers, and broadcasters across member states. By setting standardized protection measures, EU copyright law minimizes legislative discrepancies between countries, establishing a unified approach to intellectual property rights that fosters both creative innovation and cultural diversity. These harmonized standards ensure that creators and rights holders receive consistent levels of protection, which is crucial for encouraging investment in creative industries.
One key function of this legal alignment is to support cross-border accessibility, allowing consumers and businesses alike to benefit from a more cohesive digital single market. As digital content becomes increasingly integral to both the economy and culture, the EU's copyright laws aim to facilitate streamlined access to a wide array of content and services across Europe, thus promoting the free movement of cultural products. For example, the EU Copyright Directive (2019/790), often referred to as the DSM Directive, addresses challenges unique to the digital environment by clarifying the rights and responsibilities of online platforms and enabling the seamless licensing of digital content across member states. This approach enhances consumer access to diverse content while upholding the rights of creators and rights holders in an evolving digital landscape.
Moreover, by maintaining uniform copyright protections, the EU not only nurtures a robust environment for creative industries to thrive but also supports a culturally rich and diverse media landscape. These legislative efforts underline the EU’s commitment to preserving cultural heritage and promoting cultural plurality while adapting to technological advancements. Consequently, EU copyright law has established a legal framework that both incentivizes creative production and ensures equitable access, benefiting both the creators and the wider European community in a rapidly transforming digital age.
Digital Era Challenges for Berne Convention
The Berne Convention aimed to provide uniform standards for safeguarding authors’ rights across borders. However, the digital age has tested this convention, exposing both its limitations and the need for modern adaptations. As content moves effortlessly across global networks, the Berne Convention’s principles—developed for a world of print and physical media—struggle to fully encompass the complexities of digital sharing, online distribution, and cross-border accessibility of works.
One primary challenge the convention faces in the digital age involves enforcement. Under Berne, copyright holders have exclusive rights over reproduction and public performance, but in the digital space, tracking such infringements is difficult. Unauthorized copies can proliferate within seconds, outpacing any realistic enforcement efforts. A well-known example of these limitations is the Viacom v. YouTube case, in which Viacom sued YouTube in 2007 for enabling users to upload copyrighted television shows and movies without permission. While YouTube ultimately settled the lawsuit in 2014, this case illustrated the need for more precise international guidelines on platform liability and responsibility, as traditional rules for enforcing copyrights in print media are inadequate for digital sharing.
Further, the Berne Convention is challenged by the concept of "fair use" or "fair dealing", which varies widely among member states. With the rise of digital media, new forms of creative expression, such as remixing, sampling, and meme creation, test the flexibility of these exceptions. The 2015 Authors Guild v. Google case underscored this issue, as Google’s project to digitize and make millions of books available online was met with opposition from the Authors Guild. The court ruled in Google’s favor, asserting that the project fell within fair use by transforming the way content was accessed and utilized. Although the case was settled within the U.S., it raised significant questions for international jurisdictions under the Berne Convention, where fair use provisions are interpreted differently. Such cases underscore the need for clearer international guidelines on digital fair use.
The rise of social media has also complicated the convention’s principle of moral rights, particularly the right of attribution and integrity. Content on platforms like Instagram or TikTok is often shared, altered, or re-uploaded without credit to the original creator, eroding these moral rights. In Graham v. Prince (2017), photographers Donald Graham and Eric McNatt, filed a lawsuit against artist Richard Prince for appropriating his photograph from Instagram without permission or credit, regarding works from Prince’s “New Portraits” series. Although the court ruled against Prince, the case highlighted the difficulty of protecting attribution rights in an era of digital platforms that encourage the rapid circulation of media.
Efforts to adapt copyright protections to the online world have led to supplemental agreements, such as the WIPO Copyright Treaty (1996), which sought to address some of these limitations by including protections against unauthorized online distribution and digital rights management circumvention. However, these updates have not fully resolved the gaps. For instance, the Digital Millennium Copyright Act (DMCA) in the U.S. grants platform immunity under certain conditions, a standard not universally adopted by all Berne Convention countries, leading to inconsistent protections across jurisdictions. This discordance complicates the enforcement of copyright standards on global digital platforms.
In sum, the Berne Convention’s original principles continue to face challenges from digital advances that transform how content is created, shared, and consumed. Cases such as Viacom v. YouTube, Authors Guild v. Google, and Graham v. Prince illustrate the difficulties in aligning traditional copyright principles with the realities of digital media. Without further updates or adaptations to the framework, the Berne Convention risks falling short in adequately protecting authors’ rights in the evolving digital landscape.
Conclusion
The research series "The Art of Law" has embarked on a comprehensive investigation into the intricate relationship between the realms of art and law, with the first article focusing on the pioneering legislation that sought to protect art and artists. The Berne Convention, central to this discourse, epitomizes the foundational efforts to establish a legal framework that supports and safeguards artistic creation on an international scale. The Berne Convention's principle of national treatment has been instrumental in promoting international cultural exchange. By ensuring that foreign works receive the same level of protection as domestic ones, the Convention has enabled a seamless flow of artistic creations across borders. This principle has not only facilitated the dissemination of diverse artistic expressions but also fostered a global environment where the exchange of ideas and styles can thrive, enriching the cultural landscape worldwide.
Furthermore, the Convention's recognition of moral rights underscores the intrinsic value of artistic works. By protecting artists' personal and reputational interests, the Berne Convention acknowledges the deep connection between creators and their creations. This protection is crucial for maintaining the integrity of artistic expressions, allowing artists to innovate and express themselves freely without fear of misrepresentation or exploitation. In the digital age, the challenges of digital reproduction and distribution have tested the limits of copyright law. However, the Berne Convention's adaptable framework has proven resilient, guiding ongoing reforms in intellectual property law to address contemporary issues. This adaptability ensures that the Convention remains relevant and effective in safeguarding the rights of creators, even as technology continues to evolve.
This series has illuminated the essential role that legal frameworks play in supporting and nurturing the arts. The intersection of art and law is not merely transactional but deeply symbiotic. Legal protections, such as those provided by the Berne Convention, empower artists by giving them control over their creations, fostering a culture of respect and appreciation for intellectual property. This environment is crucial for the flourishing of creativity, contributing to the development of a vibrant and interconnected global arts community.
In conclusion, the first article in the research series "The Art of Law" has highlighted the significance of the Berne Convention as the first major legislation to protect art and artists, and how the Convention struggles to individuate proper law's tools for using AI in process of creating art. By investigating the historical and contemporary intersections of art and law, this series underscores the importance of robust intellectual property protections in promoting artistic innovation and cultural diversity. As we move forward, the principles enshrined in the Berne Convention and other legal instruments will continue to serve as guiding lights, ensuring that the rights of artists are upheld and their contributions to society are duly recognized and valued.
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Thompson, A. M., & Foster, J. B. (2020). Global copyright laws: The Berne Convention and beyond. Cambridge University Press.
WIPO Copyright Treaty, 1996
https://www.wipo.int/wipolex/en/text/295166
WIPO. (1986). The Berne Convention for the Protection of Literary and Artistic Works, from 1886 to 1986. Arpad Bogsch.
Law Case Studies
Visual References
Figure 1: Berne Convention, 1886.
https://www.theipmatters.com/post/berne-convention
Figure 2: Naruto's Selfie. David Slater. 2011.
Figure 3: Map of Berne, J. Stockdale. C.1800.
Figure 4: Victor Hugo. Letter on The Universal Exhibition. 1867. Hauteville House.
https://www.autographes-des-siecles.com/wp-content/uploads/2023/07/HUGO-HERNANI.jpeg
Figure 5: Sunrise. Claude Monet. 1873. Museum Marmottan Monet.
Figure 6: View of The Trocadéro, World's Fair, Paris. 1878. The National Library of France.
https://gallica.bnf.fr/ark:/12148/btv1b53085665d
Figure 7: Figure 7: Victor Hugo, Etienne Carjat. 1876. The National Library of France.
Figure 8: Study of Victor Hugo in Paris. https://www.maisonsvictorhugo.paris.fr/en/paris/museum/visit-apartment-today
Figure 9: Dance at Le moulin de la Galette, Auguste Renoir. 1876. Museum d'Orsay.
https://cdn.mediatheque.epmoo.fr/link/3c9igq/zxb1apqff1hzc5c.jpg
Figure 10: Paris Convention of 1883 for the Protection of Industrial Property.
https://abounaja.com/images/Paris-Convention-History.png
Figure 11: WIPO Headquarter Switzerland. https://www.wipo.int/export/sites/www/portal/images/wipo_assemblies_500.jpg
Figure 12: The pirate publisher. Joseph Ferdinand Keppler. 1886. Puck. http://loc.gov/pictures/resource/ppmsca.28173/
Figure 13: Copyright cloud map.
Figure 14: The US Copyright Act of 1790. U.S. Copyright Office.
https://copyright.gov/about/1790-copyright-act.html
Figure 15: Authors Guild v. Google, Fair Use Proceedings
https://www.eff.org/files/banner_library/google-fair-use-1.png
Figure 16: Graham v. Prince. https://www.cravath.com/a/web/3XE5TcArSppx2dSLYH1jXH/7H2JZq/cravath-clients-photo-comparison-posting-b-website-1200x627.jpg
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