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62-755: Attempts to harmonise copyright law in Europe (and beyond) can be dated to the signature of the Berne Convention for the Protection of Literary and Artistic Works on 9 September 1886: all European Union Member States are parties of the Berne Convention, and compliance with its dispositions is now obligatory before accession. The first major step taken by the European Economic Community to harmonise copyright laws came with

124-533: A different Berne member country. This means Berne member countries can require works originating in their own country to be registered and/or deposited, but cannot require these formalities of works from other Berne member countries. Under Article 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 3(4), "simultaneously"

186-491: A matter for the national laws of the Member States, although some countries classify some of the above rights, especially the right of communication to the public, among the moral rights of the author rather than under his rights of exploitation. The rights of authors are protected within their lifetime and for 70 years after their death; this includes the resale rights of artists . For films and other audiovisual works,

248-401: A minimum sale price below which the droit de suite will not apply: this may not be more than €3000 (Art. 3), or €10,000 where the seller acquired the work of art directly from the artist less than three years before the resale. Member States may apply a rate of 5% for the lowest portion of the resale price [Art. 4(2)]. The total amount of the royalty may not exceed €12,500: this corresponds to

310-453: A net sale price of €2,000,000 using the normal royalty rates. The droit de suite is an inalienable right of the artist, and may not be transferred except to heirs on death, nor waived even in advance [Arts. 1(1), 6(1)]. Member States may provide for the optional or compulsory collective management by collecting societies [Art. 6(2)]. As a transitional provision, Member States which did not previously have droit de suite provisions may limit

372-403: A number of specific exceptions, scattered in several provisions due to the historical reason of Berne negotiations. For example, Article 10(2) permits Berne members to provide for a "teaching exception" within their copyright statutes. The exception is limited to a use for illustration of the subject matter taught and it must be related to teaching activities. In addition to specific exceptions,

434-574: A party to the convention, since that would have required major changes in its copyright law , particularly with regard to 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

496-585: A professional party or intermediary, such as salesrooms, art galleries and, in general, any dealers in works of art [Art. 1(2)]. The droit de suite does not apply to sales directly between private individuals without the participation of an art market professional, nor to sales by individuals to public museums (para. 18 of the preamble). The artist must be a national of a Member State or of another country which has droit de suite provisions: Member States are free, but not obliged, to treat artists domiciled on their territory as nationals (Art. 7). Member States may set

558-489: A right under European Union law for artists to receive royalties on their works when they are resold. This right, often known by its French name droit de suite , appears in the Berne Convention for the Protection of Literary and Artistic Works (as Art. 14ter) and already existed in many, but not all, Member States. As a result, there was a tendency for sellers of works of art to sell them in countries without droit de suite provisions (e.g. United Kingdom) to avoid paying

620-415: A statutory monopoly. German law recognizes GEMA as an effective monopoly, and consequently the burden of proof is on the accused infringer that a work is not managed by GEMA. European copyright law is harmonised to a large extent. However, EU legislation allows for differences in the manner of member state application. Pages related to specific copyright acts are listed below: Berne Convention for

682-470: A substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database." This is taken to include the repeated extraction of insubstantial parts of the contents if this conflicts with the normal exploitation of the database or unreasonably prejudices the legitimate interests of the creator of the database. Member States may limit this right in the following cases: Database rights last for fifteen years from: Temporary copying which

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744-594: A uniform, border-crossing system that became known under the same name. Its rules have been updated many times since then. The treaty provides authors, musicians, poets, painters, and other creators with the means to control how their works are used, by whom, and on what terms. In some jurisdictions these type of rights are referred to as copyright ; on the European continent they are generally referred to as authors' rights (from French: droits d'auteur ) or makerright (German: Urheberrecht ). As of November 2022,

806-409: A work is published in a party country and nowhere else, this is the country of origin. However, under Article 5(4), when a work is published "simultaneously" ("within 30 days") in several party countries, the country with the shortest term of protection is defined as the country of origin. For works simultaneously published in a party country and one or more non-parties, the party country

868-407: Is defined as "within 30 days") in a country that is party to the convention. Under Article 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. The Convention relies on the concept of "country of origin". Often determining the country of origin is straightforward: when

930-517: Is the country of origin. For unpublished works or works first published in a non-party country (without publication within 30 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.) In the Internet age, unrestricted publication online may be considered publication in every sufficiently internet-connected jurisdiction in

992-525: Is the result of the transmission of a work or of its legal use is not covered by the exclusive right of reproduction. Member states can implement other limitations from the list in Information Society Directive Article 5, or retain limitations which were already in force on 22 June 2001. Permitted limitations are: No new limitations may come into force after 22 June 2001 except those in the permitted limitations given in

1054-631: The Marrakesh Copyright Exceptions Treaty for the Blind and Print-Disabled was the first international treaty centered around the rights of users. Treaties featuring exceptions for libraries and educational institutions are also being discussed. The Berne Convention was developed at the instigation of Victor Hugo of the Association Littéraire et Artistique Internationale . Thus it was influenced by

1116-534: The 70-year period applies from the last death among the following people, whether or not they are considered to be authors of the work by the national law of the Member State: the principal director (who is always considered to be an author of the audiovisual work), the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work. The rights of performers last for 50 years from

1178-473: The Berne Convention establishes the " three-step test " in Article 9(2), which establishes a framework for member nations to develop their own national exceptions. The three-step test establishes three requirements: that the legislation be limited to certain (1) special cases; (2) that the exception does not conflict with a normal exploitation of the work, and (3) that the exception does not unreasonably prejudice

1240-475: The Berne Convention has been ratified by 181 states out of 195 countries in the world, most of which are also parties to the Paris Act of 1971. The Berne Convention introduced the concept that protection exists the moment a work is "fixed", that is, written or recorded on some physical medium, and its author is automatically entitled to all copyrights in the work and to any derivative works , unless and until

1302-477: The Berne Convention sets a minimum term of 25 years from the year the photograph was created, and for cinematography the minimum is 50 years after first showing, or 50 years after creation if it has not been shown within 50 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

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1364-588: The European Parliament passed legislation to increase the term to 70 years. Where a work enjoyed a longer period of protection under national law on 1 July 1995, its period of protection is not shortened. Otherwise, these terms of protection apply to all works which were protected in a Member State of the European Economic Area on 1 July 1995. This provision had the effect of restoring the copyrights in certain works which had entered

1426-725: The French " rights of the author " ( droits d'auteur ), which contrasts with the Anglo-Saxon concept of "copyright" which only dealt with economic concerns. Before the Berne Convention, copyright legislation remained uncoordinated at an international level. 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

1488-678: The Information Society Directive. Limitations may only be applied in balance with the Berne three-step test that asks the exceptions be "certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder". However it was agreed at the time of drafting the WIPO Copyright and Performances and Phonograms Treaties that this wording "neither reduces nor extends

1550-484: The Protection of Literary and Artistic Works The Berne Convention for the Protection of Literary and Artistic Works , usually known as the Berne Convention , was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal of agreeing on a set of legal principles for the protection of original work . They drafted and adopted a multi-party contract containing agreements for

1612-552: The United Kingdom. They ratified it on 5 September 1887. Although Britain 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 acceded to the convention on 16 November 1988, and the convention entered into force for the United States on 1 March 1989. The United States initially refused to become

1674-895: 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 completed in Paris in 1886, revised 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

1736-406: The United States joined the convention on 1 March 1989, it continued to make statutory damages and attorney's fees only available for registered works. However, Moberg v Leygues (a 2009 decision of a Delaware Federal District Court) held that the protections of the Berne Convention are supposed to essentially be "frictionless", meaning no registration requirements can be imposed on a work from

1798-701: The United States, has been the subject of dispute between Google and European governments, following the passage of ancillary copyright for press publishers in Germany and the Directive on Copyright in the Digital Single Market EU-wide. The Enforcement Directive covers the remedies that are available in the civil courts and harmonises the rules on standing , evidence , interlocutory measures , seizure and injunctions , damages and costs and judicial publication . Germany recognises

1860-863: The Universal Copyright Convention nearly obsolete. 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. Since almost all nations are members of the World Trade Organization , the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires non-members to accept almost all of

1922-432: The artist herself or himself or are copies which have been made in limited numbers by the artist or under his or her authority." The Database Directive created a sui generis protection for databases which do not meet the criterion of originality for copyright protection. It is specifically intended to protect "the investment of considerable human, technical and financial resources" in creating databases (para. 7 of

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1984-421: The author explicitly disclaims them or until the copyright expires. A creator need not register or "apply for" a copyright in countries adhering to the convention. It also enforces a requirement that countries recognize rights held by the citizens of all other parties to the convention. Foreign authors are given the same rights and privileges to copyrighted material as domestic authors in any country that ratified

2046-418: 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 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 years after death) applies. Although the Berne Convention states that

2108-668: The conditions of the Berne Convention. As of October 2022, there are 181 states that are parties to the Berne Convention. This includes 178 UN member states plus the Cook Islands , the Holy See and Niue . The Berne Convention was intended to be revised regularly in order to keep pace with social and technological developments. It was revised seven times between its first iteration (in 1886) and 1971, but has seen no substantive revision since then. That means its rules were decided before widespread adoption of digital technologies and

2170-586: The convention. The countries to which the convention applies created a Union for the protection of the rights of authors in their literary and artistic works, known as the Berne Union . The Berne Convention requires its parties to recognize the protection of works of authors from other parties to the convention at least as well as those of its own nationals. For example, French authors' rights law applies to anything published, distributed, performed, or in any other way accessible in France, regardless of where it

2232-495: The country of origin for digital publication remains a topic of controversy among law academics as well. The Berne Convention states that all works except photographic and cinematographic shall be protected for at least 50 years after the author's death, but parties are free to provide longer terms , as the European Union did with the 1993 Directive on harmonising the term of copyright protection . For photography,

2294-576: The decision to apply common standard for the copyright protection of computer programs, enacted in the Computer Programs Directive in 1991. A common term of copyright protection, 70 years from the death of the author, was established in 1993 as the Copyright Duration Directive . The implementation of directives on copyright has been rather more controversial than for many other subjects, as can be seen by

2356-430: The distribution or communication of the performance, or for 50 years from the performance itself if it had never been communicated to the public during this period. The rights of phonogram producers last for 50 years after publication of the phonogram, or for 50 years after its communication to the public if it had never been published during that period, or for 50 years after its creation if it had never been communicated to

2418-526: The internet. In large part, this lengthy drought between revisions comes about because the Treaty gives each member state the right to veto any substantive change. The vast number of signatory countries, plus their very different development levels, makes it exceptionally difficult to update the convention to better reflect the realities of the digital world. In 2018, Professor Sam Ricketson argued that anyone who thought that further revision would ever be realistic

2480-426: The legislation of the country where protective rights are claimed shall be applied, Article 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", i.e., an author is normally not entitled a longer protection abroad than at home, even if the laws abroad give a longer term. This is commonly known as "the rule of

2542-431: The legitimate interests of the author. The Berne Convention does not expressly reference doctrines such as fair use or fair dealing , leading some critics of fair use to argue that fair use violates the Berne Convention. However, the United States and other fair use nations argue that flexible standards such as fair use include the factors of the three-step test, and are therefore compliant. The WTO Panel has ruled that

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2604-442: The meaning of this Treaty or the Berne Convention." This language may mean that Internet service providers are not liable for the infringing communications of their users. Since companies are using internet to publish user generated content , critics have argued that the Berne Convention is weak in protecting users and consumers from overbroad or harsh infringement claims, with virtually no other exceptions or limitations. In fact,

2666-506: The net benefit would be to benefit authors. Resale Rights Directive Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art is a European Union directive in the field of copyright law, made under the internal market provisions of the Treaty of Rome . It creates

2728-487: The non-discrimination provision of Article 6 EC (formerly Art. 7), and under the provisions of Article 36 which allows for restrictions on trade between Member States if justified by the protection of industrial and commercial property (including copyright). The directives were made under the internal market provisions of the treaties, notably Article 95 EC (formerly Art. 100a) The following rights are protected by European Union law: Moral rights are usually considered to be

2790-576: The other types of intellectual property: patents, trademarks and industrial designs . 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

2852-564: The portion of the resale price up to EUR 50,000 and 0.25% for the portion of the resale price above EUR 500,000. The total royalty is limited at EUR 12,500, equivalent to a resale price of EUR 2,000,000. Member States may choose to exempt sales of less than EUR 3000 from royalty. Works of art which are covered by this resale right are "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by

2914-409: The preamble), whereas the copyright laws of many Member States specifically exclude effort and labour from the criteria for copyright protection. To qualify, the database must show "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents". Their creators have the right "to prevent extraction and/or re-utilization of the whole or of

2976-411: The public domain in countries with shorter copyright terms. The EU Information Society Directive modified the term of protection of phonograms, calculating from the date of publication instead of from an earlier date of communication to the public, but did not restore the protection of phonograms which had entered the public domain under the former rules. All periods of protection run until 31 December of

3038-410: The public. The rights of film producers last for 50 years after the communication of the film to the public, or for 50 years after its creation if it had never been communicated to the public during that period. The rights of broadcasting organisations last for 50 years after the first transmission of a broadcast. The European Commission proposed this be extended to 95 years and following this suggestion

3100-657: The royalty. This was deemed to be a distortion of the internal market (paras. 8–11 of the preamble), leading to the Directive. For the droit de suite to apply, the work, the sale and the artist must all qualify. The work must be an original work of art or a copy made in limited numbers by the artist himself or under his authority, including "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs" (Art. 2), and under copyright protection [Art. 8(1)]. The sale must involve

3162-558: The scope of applicability of the limitations and exceptions permitted by the Berne Convention." This explicit list of exceptions stands in contrast to the open-ended Fair Use doctrine employed by the United States , and the European Union has typically been staunchly against considering frameworks resembling Fair Use. The use of short snippets of news articles in aggregation sites like Google News , covered by fair use in

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3224-448: The shorter term ". Not all countries have accepted this rule. 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 Berne Convention includes

3286-585: The six judgments for non-transposition of the Information Society Directive . Traditionally, copyright laws vary considerably between member states, particularly between civil law and common law jurisdictions. Changes in copyright law have also become linked to protests against the World Trade Organization and globalisation in general. The first decisions of the European Court of Justice covering copyright were made under

3348-539: The so-called GEMA Vermutung whereby the burden of proof is on the alleged infringer in an infringement lawsuit. Copyright collecting societies in the European Union usually hold monopolies in their respective national markets. Some countries create a statutory monopoly, while others recognise effective monopolies through regulations. In Austria, the Society of Authors, Composers and Publishers ( Gesellschaft der Autoren, Komponisten und Musikverleger , AKM) has

3410-505: The standards are not incompatible. The Berne Convention does not include the modern concept of Internet safe harbors , simply because Internet was not known as a technology at that time. 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

3472-590: 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. 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

3534-451: The wishes of other countries. With the WIPO's Berne revision on Paris 1971, many other countries joined the treaty, as expressed by Brazil federal law of 1975. On 1 March 1989, the U.S. Berne Convention Implementation Act of 1988 was enacted, and the U.S. Senate advised and consented to ratification of the treaty, making the United States a party to the Berne Convention, and making

3596-605: The world. It is not clear what this may mean for determining "country of origin". In Kernel v. Mosley (2011), a U.S. 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. work by virtue of its being published online". However other U.S. courts in similar situations have reached different conclusions, e.g. Håkan Moberg v. 33T LLC (2009). The matter of determining

3658-429: The year in which they expire. The Resale Rights Directive created a right for the creators of works of art to participate in the proceeds of the resale of their work. This right, which is sometime known by its French name droit de suite , is personal to the artist and can only be transferred by inheritance. It is calculated as a proportion of the resale price (net of tax), which varies between 4 and 5 percent for

3720-759: Was "dreaming". Berne members also cannot easily create new copyright treaties to address the digital world's realities, because the Berne Convention also prohibits treaties that are inconsistent with its precepts. Legal academic Rebecca Giblin has argued that one reform avenue left to Berne members is to "take the front door out". The Berne Convention only requires member states to obey its rules for works published in other member states – not works published within its own borders. Thus member nations may lawfully introduce domestic copyright laws that have elements prohibited by Berne (such as registration formalities), so long as they only apply to their own authors. Giblin also argues that these should only be considered where

3782-399: 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. 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

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3844-469: Was originally created, if the country of origin of that work is in the Berne Union. In addition to establishing a system of equal treatment that harmonised copyright amongst parties, the agreement also required member states to provide strong minimum standards for copyright law. Author's rights under the Berne Convention must be automatic; it is prohibited to require formal registration. However, when

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