The proprietary world: WIPO and its ideas of intellectual property
From Berne Convention to DMCA
As seen from the previous lecture, intellectual property as understood today by the World Intellectual Property Organization has actually very diverse roots - the widely proclaimed idea of proper awarding of authors is definitely not the only one. Yet the proprietary approach has gradually grown to be widely accepted and it has only recently started to be questioned. In today's lecture, we will visit the major landmarks of intellectual property as it is undestood by WIPO.
The Berne Convention
As seen previously, the birth of the Convention 1886 was largely attributed to the attempt to harmonise two rather different schools of thought (Continental European vs Anglo-American).
According to the WIPO website, the Convention is based on three main principles:
- Works originating in one of the contracting States (that is, works the author of which is a national of such a State or works which were first published in such a State) must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals (principle of “national treatment”).
- Such protection must not be conditional upon compliance with any formality (principle of “automatic” protection).
- Such protection is independent of the existence of protection in the country of origin of the work (principle of the “independence” of protection). If, however, a contracting State provides for a longer term than the minimum 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.
Thus the Convention states the universal, unconditional 'cross-protection' between the member states. In case of longer local protection period, the Convention guarantees protection only for the universally accepted timeframe.
The minimum standards of protection are determined as follows:
- As to works, the protection must include “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression” (Article 2(1) of the Convention).
- Subject to certain permitted reservations, limitations or exceptions, the following are among the rights which must be recognized as exclusive rights of authorization:
- the right to translate,
- the right to make adaptations and arrangements of the work,
- the right to perform in public dramatic, dramatico-musical and musical works,
- the right to recite in public literary works,
- the right to communicate to the public the performance of such works,
- the right to broadcast (with the possibility of a contracting State to provide for a mere right to equitable remuneration instead of a right of authorization),
- the right to make reproductions in any manner or form (with the possibility of a contracting State to permit, in certain special cases, reproduction without authorization provided that the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author, and with the possibility of a contracting State to provide, in the case of sound recordings of musical works, for a right to equitable remuneration),
- the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work.
The Convention also provides for “moral rights,” that is, the right to claim authorship of the work and the right to object to any mutilation or deformation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to the author’s honor or reputation.
As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death. There are, however, exceptions to this general rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years after the work has been lawfully made available to the public, except if the pseudonym leaves no doubt as to the author’s identity or if the author discloses his identity during that period; in the latter case, the general rule applies. In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public (“release”) or—failing such an event—from the creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of such a work.
It is interesting to notice that while the Convention prescribes the protection of photographs for 25 years, this exception is "switched off" with the 1996 WTC treaty. Apparently the meantime development of technology made it possible to store photoes much longer, so to prevent loss of control, the point was de facto invalidated.