Berne Convention - time to modify the treaty?

!20031006 Berne Convention - time to modify the treaty?

As my new Web site, www.patenting-art.com, documents, there is a growing amount of art being protected by utility patents around the world. The scope of art patenting will expand in the decades to come, as scientists and engineers continue their takeover of the production of art and entertainment.

Given that the 1971 Berne Convention exists to help artists protect their works, and since the Berne Convention is silent about utility patents, it is the obligation of the UN/WIPO to start proceedings to modify the Berne Convention to more accurately reflect the use of utility patents to protect art. WIPO is currently discussing global patent issues with its Substantive Patent Law Treaty (SPLT) discussions, so that the SPLT could expand its agenda to include revising Berne.

The nature of the production of art and entertainment is undergoing significant and disruptive changes. It is time that WIPO started focusing on the harmonization of patent AND copyright laws, whatever complexities this adds to global discussions. These production changes need their legal protection, and the current patent and copyright treaties are increasingly archaic.

What follows is a discussion of why it is time to rewrite the Berne Convention.

The Berne Convention is presumed to be the treaty that helps artists protect their works, using copyright. But the Convention is fairly vague when it comes to discussing copyrights. The Convention starts out as follows:

    Berne Convention for the Protection of Literary and Artistic Works

(Paris Act of July 24, 1971, as amended on September 28, 1979)

    The countries of the Union, being equally animated by the desire     to protect, in as effective and uniform a manner as possible, the     rights of authors in their literary and artistic works,

    Recognizing the importance of the work of the Revision Conference     held at Stockholm in 1967,

    Have resolved to revise the Act adopted by the Stockholm Conference,     while maintaining without change Articles 1 to 20 and 22 to 26 of     that Act.

    Consequently, the undersigned Plenipotentiaries, having presented     their full powers, recognized as in good and due form, have agreed     as follows:

                                Article 1
                        [Establishment of a Union]

    The countries to which this Convention applies constitute a Union     for the protection of the rights of authors in their literary and     artistic works.

Immediately one notices that the word "copyright" appears nowhere in the preamble and beginning of the text, unlike say the PATENT Cooperation Treaty, or the WIPO COPYRIGHT Treaty. That all of art is solely patentable, or patentable as well as copyrightable, is consistent with this introductory text. Article 2, section (1), lists the art to be protected, again without mentioning "copyright":

                                    Article 2
                                       

(1) The expression "literary and artistic works" shall include every
    production in the literary, scientific and artistic domain, whatever     may be the mode or form of its expression, such as books, pamphlets     and other writings; lectures, addresses, sermons and other works of     the same nature; dramatic or dramatico-musical works; choreographic     works and entertainments in dumb show; musical compositions with or     without words; cinematographic works to which are assimilated works     expressed by a process analogous to cinematography; works of drawing,     painting, architecture, sculpture, engraving and lithography;     photographic works to which are assimilated works expressed by a     process analogous to photography; works of applied art; illustrations,     maps, plans, sketches and three-dimensional works relative to     geography, topography, architecture or science.   

You will note that by the end of this Section, "copyright" is still not mentioned. Indeed, one could view a manufactured invention as a "scientific work's" "mode or form of its expression", the expression being the patent specification, the form being its production. To this point then, the Treaty is consistent with using patents to protect art.

(2) It shall, however, be a matter for legislation in the countries
    of the Union to prescribe that works in general or any specified     categories of works shall not be protected unless they have been     fixed in some material form.

While "fixed" is copyright language, it could also mean "concrete and tangible" which is patent language. Again, this clause can be made invariant with respect to patents and copyrights.   

(3) Translations, adaptations, arrangements of music and other
    alterations of a literary or artistic work shall be protected as     original works without prejudice to the copyright in the original     work.

Finally, the word "copyright" enters the treaty. But it is used only in a relative way. All this clause says is that an adaptation is as copyrightable as the original work, and implies that the adaptation will probably have lesser scope in light of the original work. Again, this Section is compatible with patenting original works of art, and allowing the adaptations to be protected by patents as well. This clause does not mandate that originals works of art have to be protected by copyright. For example, one could expand "copyright" in this section to "copyright and/or patent", and be compatible with all existing IP laws.  

(4) It shall be a matter for legislation in the countries of the
    Union to determine the protection to be granted to official texts     of a legislative, administrative and legal nature, and to official     translations of such texts.   

(8) The protection of this Convention shall not apply to news of the
    day or to miscellaneous facts having the character of mere items     of press information.

Again, nothing precludes these considerations from applying to patents.

(5) Collections of literary or artistic works such as encyclopaedias
    and anthologies which, by reason of the selection and arrangement     of their contents, constitute intellectual creations shall be     protected as such, without prejudice to the copyright in each of     the works forming part of such collections.

Again, the same use of "copyright" in clause (3), where one can expand "copyright" to "copyright and/or patent".   

(6) The works mentioned in this Article shall enjoy protection in
    all countries of the Union. This protection shall operate for the     benefit of the author and his successors in title.

One can expand the word "author" to read "author or inventor", and the result is consistent with current IP laws. While we are making changes, how about expanding "his" to "his or her"?

(7) Subject to the provisions of Article 7(4) of this Convention,
    it shall be a matter for legislation in the countries of the Union     to determine the extent of the application of their laws to works     of applied art and industrial designs and models, as well as the     conditions under which such works, designs and models shall be     protected. Works protected in the country of origin solely as     designs and models shall be entitled in another country of the     Union only to such special protection as is granted in that country     to designs and models; however, if no such special protection is     granted in that country, such works shall be protected as artistic     works.   

    Article 7(4) It shall be a matter for legislation in the countries     of the Union to determine the term of protection of photographic     works and that of works of applied art in so far as they are     protected as artistic works; however, this term shall last at least     until the end of a period of twenty-five years from the making of     such a work.

Finally, a bit of recognition of patents. That is, countries can have design patents and have such patents viewed in other countries as a copyright if the other country doesn't have a design patent. Not bad, but there is no recognition here of the growing UTILITY patenting of art.

There are a few more uses of the word "copyright" in the rest of the treaty, but the uses are no more definitive than the uses listed above. And there is no explicit use of the word "patent" anywhere in the treaty. Berne suggests all of this, but in a vague way, even though all places where "copyright" is used could equally use "copyright and/or patent".

For software people, this lack of specific guidance is important. The WIPO Copyright and TRIPS treaties include the following language, supposedly to justify software copyright:

    Computer programs, whether in source or object code, shall be     protected as literary works under the Berne Convention.

But the Berne Convention doesn't explicitly say how literary works are to be protected, so this language means nothing (beyond the fact that from the point of view of formal language theory, this sentence is very vague).

So, if the world is going to have some general global treaty that gives protection to artists (beyond specific treaties such as copyright or patent treaties), for this global treaty to be honest and relevant, it has to have language recognizing the utility patenting of art. The Berne Convention does not do so, and should be revised as soon as possible by WIPO.

Greg Aharonian
Internet Patent News Service Received on Tue Oct 07 2003 - 23:55:10 GMT