Berne Convention 1886 and WCT 1996

The Berne Convention 1886 on copyright (national treatment, automatic protection) and the WIPO Copyright Treaty 1996.

The Berne Convention (1886) is the foundational multilateral treaty for copyright protection. It establishes the principles of automatic protection (no formalities), national treatment, and minimum rights for authors. The WIPO Copyright Treaty (WCT, 1996) supplements Berne for the digital environment, addressing issues like technological protection measures and the right of communication to the public.

Why: By the 1880s, piracy of literary works across borders was rampant (Victor Hugo was a driving force). The Berne Convention created a "Berne Union" where authors received automatic protection in all member states without needing to register in each country.

Legal Framework

Element	Berne Convention	WCT (1996)
Adopted	9 September 1886 (Berne)	20 December 1996 (Geneva)
Last revision	Paris Act, 1971	N/A (standalone treaty)
Members	181 contracting states	116 contracting parties
India's accession	1 April 1928	2018 (ratified)
Administered by	WIPO	WIPO
Relationship	Foundation treaty	Special agreement under Art. 20 of Berne; supplements but does not derogate from Berne

Berne Convention: Core Principles

Principle of Automatic Protection (Art. 5(2))

"The enjoyment and exercise of these rights shall not be subject to any formality."

Copyright protection is automatic upon creation of an original work in a fixed form. No registration, deposit, notice (©), or other formality is required.

Why: Unlike patents/trademarks where registration incentivises disclosure, copyright protects expression. Requiring authors in 181 countries to register separately would be impractical and would chill creative output.

National Treatment (Art. 5(1))

Authors enjoy in member countries (other than the country of origin) the rights which their respective laws grant to nationals, plus the rights specially granted by the Convention.

Minimum Rights (Convention establishes floor)

Right	Article	Scope
Reproduction	Art. 9	Exclusive right to reproduce in any manner or form
Translation	Art. 8	Exclusive right to translate
Adaptation	Art. 12	Exclusive right to authorise adaptations, arrangements
Public performance	Art. 11	Dramatic/musical works: performance, communication
Broadcasting	Art. 11bis	Broadcasting, rebroadcasting, public communication of broadcast
Recitation	Art. 11ter	Public recitation of literary works
Moral rights	Art. 6bis	Attribution (paternity) + integrity (objection to distortion)
Term	Art. 7(1)	Minimum: life of author + 50 years

Country of Origin Rule (Art. 5(4))

The "country of origin" is the country of first publication. For unpublished works, it is the country of the author's nationality. Protection in the country of origin is governed by domestic law (not the Convention).

Three-Step Test (Art. 9(2))

Limitations/exceptions to the reproduction right are permitted only if they:

Apply to certain special cases
Do not conflict with normal exploitation of the work
Do not unreasonably prejudice the legitimate interests of the author

Why: The three-step test became the universal framework (incorporated into TRIPS Art. 13, WCT Art. 10) for evaluating whether a national copyright exception is permissible.

WIPO Copyright Treaty (WCT), 1996

The WCT is a "special agreement" under Berne Art. 20, designed to update copyright for the digital age.

Key Provisions

Article	Subject	Rule
Art. 1(4)	Berne compliance	WCT parties must comply with Arts. 1-21 of Berne
Art. 2	Scope of protection	Protection extends to expressions, not to ideas, procedures, methods, or mathematical concepts
Art. 4	Computer programs	Protected as literary works under Berne Art. 2
Art. 5	Compilations/databases	Original compilations of data constitute intellectual creations and are protected
Art. 6	Distribution right	Exclusive right to make available the original and copies through sale or other transfer of ownership
Art. 7	Rental right	Exclusive rental right for computer programs, films, phonograms
Art. 8	Communication to the public	Exclusive right to make works available to public by wire or wireless (covers internet transmission)
Art. 11	Technological Protection Measures (TPMs)	Members must provide adequate legal protection against circumvention of TPMs
Art. 12	Rights Management Information (RMI)	Members must prohibit removal/alteration of electronic RMI

Art. 8: Communication to the Public (Internet right)

This is the WCT's most significant contribution. It grants authors the exclusive right of "making available to the public of their works, by wire or wireless means, in such a way that members of the public may access these works from a place and at a time individually chosen by them."

Why: The Berne Convention (1886/1971) pre-dated the internet. Art. 8 WCT ensures that uploading a work to a website, streaming it, or offering it for download falls within the author's exclusive rights.

Illustrations

Automatic protection (no formalities): A 12-year-old in Kerala writes a poem in her notebook. The moment her pen leaves the paper, she has copyright. No registration needed. No © symbol needed. No deposit with any office. If her teacher photocopies the poem and publishes it in a magazine without credit, the child can sue for infringement + violation of moral rights. Berne Art. 5(2) guarantees this.
Three-step test in practice: A coaching institute in Kota photocopies entire chapters from a physics textbook for 500 students. Is this a permitted exception?
- Step 1 (certain special cases): Is "coaching institute" a special case? Unlike a university (institutional education), a coaching class is commercial. Fails.
- Even if Step 1 passes: Step 3 (unreasonable prejudice): Copying 500 copies destroys the market for the textbook in Kota. The author loses book sales. This unreasonably prejudices legitimate interests.
- Result: NOT a valid exception under the three-step test.
WCT Art. 8 "making available" (internet right): You upload a Bollywood song to YouTube without permission. Under old Berne (pre-1996), it was unclear if this was "broadcasting" or "public performance." WCT Art. 8 settles it: making a work available online so users can access it at a time/place of their choice is within the author's exclusive right. The upload itself is the infringement — even if nobody watches.

Recall Check

What does the principle of "automatic protection" under Berne Art. 5(2) mean, and how does it differ from patent/trademark registration?
State the three-step test for copyright exceptions and identify where it appears in TRIPS.
What new right did WCT Art. 8 introduce, and why was it necessary?

Key Cases

Mannu Bhandari v. Kala Vikas Pictures (1987) Mannu-Bhandari-v-Kala-Vikas-Pictures-1987 Issue: Whether the film producer's alterations to an adapted literary work violated the author's moral rights. Rule: Moral rights (Art. 6bis Berne, S.57 Copyright Act) include the right to object to distortion, mutilation, or modification prejudicial to the author's honour or reputation. Held: Author's moral right of integrity was violated; adaptation must not distort the original work to the prejudice of the author's reputation, even after economic rights are assigned.

Infopaq International v. Danske Dagblades Forening (ECJ, 2009) Infopaq-v-Danske-Dagblades-2009 Issue: Whether copying 11-word excerpts from newspaper articles for media monitoring constituted reproduction under Berne Art. 9. Rule: Reproduction right covers any reproduction "in any manner or form" (Berne Art. 9(1)); even small extracts are protected if they are the author's own intellectual creation. Held: Extraction of 11-word snippets constitutes reproduction if the extract contains elements reflecting the author's original intellectual creation.

Distinctions

Parameter	Berne Convention	Paris Convention
Subject matter	Copyright (literary/artistic works)	Industrial property (patents, TMs, designs)
Protection trigger	Automatic (no formality)	Registration required (except trade names)
Core right	Reproduction, adaptation, performance	Right to make, use, sell
Moral rights	Yes (Art. 6bis)	Not applicable
Minimum term	Life + 50 years	Varies by type (20 years for patents)
Priority right	Not applicable	Yes (Art. 4: 6-12 months)
Enforcement (standalone)	No binding dispute mechanism	No binding dispute mechanism

Flashcards

Q: What is the minimum copyright term under the Berne Convention? A: Life of the author plus 50 years (Art. 7(1)). India provides life + 60 years.

Q: What does "no formalities" mean under Berne Art. 5(2)? A: Copyright protection must not be contingent on registration, notice (©), deposit, or any other procedural requirement.

Q: What is the three-step test for copyright exceptions? A: Exceptions must (1) apply to certain special cases, (2) not conflict with normal exploitation, and (3) not unreasonably prejudice the author's legitimate interests.

Q: What are moral rights under Berne Art. 6bis? A: (1) Right of attribution (claim authorship), (2) right of integrity (object to distortion/modification prejudicial to honour or reputation). They exist independently of economic rights.

Q: What is WCT Art. 8's "making available" right? A: The exclusive right to make works available to the public by wire or wireless means, so that individuals can access them at a time and place of their choosing (covers internet/on-demand).

Q: What does WCT Art. 11 require regarding TPMs? A: Members must provide adequate legal protection and effective legal remedies against circumvention of technological protection measures used by authors.

Q: How does WCT relate to the Berne Convention? A: WCT is a "special agreement" under Berne Art. 20; it supplements Berne for the digital environment without derogating from existing Berne obligations.

Exam Scenario

Author A writes a novel in India and uploads it to a public website without any copyright notice (©). Publisher B in Germany downloads, translates, and publishes the novel without permission. Publisher B argues that (a) the absence of © notice means no copyright, and (b) online uploading constitutes abandonment.

Advise Author A: (a) Whether the absence of © notice affects copyright protection under the Berne Convention. (b) Whether the translation violates Author A's exclusive right under Berne Art. 8. (c) Whether Author A can invoke WCT Art. 8 regarding the original upload and its "making available" implications. (d) Whether India's accession to WCT strengthens Author A's claim.