Re: Re: problems with Berne Convention language

To me, the point is irrelevant. Berne is not a treaty for protecting artists, it's for protecting copyright. It has nothing to say about patents, nor should it; other treaties deal with that.

For my own part, as a matter of policy I would require someone to choose which form of protection (s)he wants, and deny the others. So, if someone wanted the strong but short protection of a utility patent, go with a patent but don't look for a copyright; or vice versa for the weaker but longer protection of a copyright.

Vance

On 4/3/06, Gregory Aharonian <srctran[_at_]world.std.com> wrote:
>
>
> >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.
>
> As pointed out, the Berne Convention has many archaic language problems.
> But that's not the worst of its problems. Berne helps coordinate global
> protection for authors and their literary/artistic works, using language
> directed towards copyright-like protection. The problem is that a growing
> number of "authors" around the world are also using utility patents for
> protection their artistic works, though utility patents are completely
> absent in Berne (there is a reference to design patents). You can see
> lists of such art utility patents at:
> www.patenting-art.com/database
>
> What follows is an old news item of mine arguing that it is time to fix
> Berne to reflect the fact that authors are using patents for protection
> of many of their works. Indeed, it would not be that hard to tweak Berne
> to do so. Berne, as is, is silly in its denial of the patenting of art.
>
> Greg Aharonian
> Internet Patent News Service
>
>
> !
> DATE[20031006
> TITLE[Berne Convention - time to modify the treaty?
> TEXT[
>
> 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 is, at least in English.
> "Rights of author", in the original French of the treaty, corresponds
> in French mostly to copyright, but substituting in "copyright" into the
> English text doesn't parse, assuming that is what is meant. Which is
> questionable, since the word "copyright" is used a few times in the
> body of the Convention. In short, the wording of Berne is vague.
> Especially for the English text, that all of art is 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
> explicitly 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.
>
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--
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com