Re: Re: Berne Convention -- copyright or author-right?

The Berne Convention uses terms common in continental Europe rather than in common-law countries, which also bespeak a difference in concept. "Copyright" is an Anglo-American term that reflects the concept that the owner is granted a limited monopoly--a bit of negotiable intangible property--for special purposes. "Author's right" (droit d'auteur in French, Urheberrecht in German, diritto d'autore in Italian, etc.) is broader, to encompass not only the economic right to exploit the author's work product, but also those aspects, for example the "moral right" described in Article 6bis, that are considered to be rights of personality rather than economic rights. Article 6bis was the principal reason the US didn't join the Berne Union for over 100 years--it's a concept that was considered antithetical to American notions (since largely eroded, alas) that the author *is granted* (important to note that it's not somehow inherent) exclusive rights in exchange for the dedication of the author's creation for public consumption. Think of moral rights like defamation--you can't really sell your reputation the way you can sell a piece of property (or at least the French, who invented this idea, didn't think so). In practice, the differences between the economic rights of copyright and author's right aren't so great; as Steve said, having an exclusive right to make copies, distribute, etc., just means that the copyright owner (initially the author, but since the rights are negotiable, they can be transferred) has the right to demand payment and put limits on the exploitation of these rights by others, through the usual principles of contract and agency. Moral rights cannot be sold; the only way to transfer them is by inheritance, but they can be *waived* as against a particular person.

The idea that an author's creation is a manifestation of the author's person has some intrinsic appeal, though it's been abused to act as an impediment to the dissemination of ideas. But, as I said, it reflects some inherent differences between the way different cultures think. Remember, to solve a French mystery, you "cherchez la femme," whereas to solve an American one you "follow the money." <gallic shrug> Vive la différence?

Vance

On 3/30/06, Steven Jamar <stevenjamar[_at_]gmail.com> wrote:
> Hmmm. Quick course in international law anyone?
>
> The Berne Convention is an agreement on copyright protection. The wording
> seems strange now, perhaps, especially for those not versed in international
> law. In general the aim is to use words to articulate rights and
> obligations without using special terms of art that work in one language or
> one culture but not another. Of course, this aim is hardly consistently
> either attempted or realized, but it is one reason for the language.
> Copyright statutes don't say "xyz has a copyright" and leave it at that --
> they define the rights that are bundled in the term copyright. Same sort
> of thing in the Berne Convention.
>
> "Exclusive" here means just what it means in most laws. Nothing special
> about it. It does not eliminate agency law and contract law and so on.
>
> Steve
>
>
>
> On Mar 30, 2006, at 5:59 PM, Samuel Murray wrote:
>
> G'day everyone
>
> I had always thought that the Berne Convention is an agreement on copyright
> protection, but it would seem to me that the Berne Convention does not
> protect copyright per se, but author-right instead. What are your takes on
> this? The convention uses the term "economic rights" (which I had presumed
> was copyright) as if it is distinct from author-rights (article 6bis).
>
> Mention of the right to "copy" is made, but it says that the author has
> exclusive right to authorise the production of copies, except in special
> cases. What does "exclusive" mean in this case? Does it mean only the
> author and no-one else (not his agent, his client, his publisher, etc) has
> the right to authorise publication? (article 9)
>
> Thanks for your comments.
>
> Samuel
>
>
>
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> But, Mousie, thou art no thy lane,
>
> In proving foresight may be vain;
>
> The best-laid schemes o' mice an' men
>
> Gang aft agley,
>
> An' lea'e us nought but grief an' pain,
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> For promis'd joy!
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> Robert Burns, 1785
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>

--
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com