Author Name:   grover@legalserviceindia.com

The developments in Latin America explain the need perceived in the mid 1940’s for another multilateral treaty on author’s rights in addition to the Berne Convention

Reasons For The Adoption Of The Universal Copyright Convention

The developments in Latin America explain the need perceived in the mid 1940’s for another multilateral treaty on author’s rights in addition to the Berne Convention - a need perceived although the Berne Convention had just proved its dynamics by its then latest revision of 1948. Indeed , international relations in the field of copyright in the first half of the twentieth century were not truly universal but split between major parts of the world.

While the Berne Convention was centred around Europe , other multilateral treaties had developed in parallel in the America’s to govern relations among most North and South American countries. At the same time , most American countries were not members of the Berne Convention because they were not ready to comply with its comparatively high level of minimum standards.

The USA had the additional obstacle of its national copyright system , which partly remained at odds with the authors’ rights system embodied in Berne . In particular , the US law required the fulfilment of formalities for the enjoyment of copyright protection . Furthermore , the duration was twenty-eight years . Moreover , the moral rights were fundamentally alien to its system of protection.

This development towards a split into two separate international protection systems contradicted the fundamental aim of the Berne Convention to achieve international protection universally . The idea of a convention that should overcome this split was born .

Way Towards The Adoption Of The Universal Copyright Convention
In order to advance work on a more universal approach by reconciling the different multilateral conventions , the Rome Revision Conferencce 1928 of the Berne Convention adopted a view to take measures towards the preparation of a general agreement on the basis of the similar rules of the Berne and the Buenos Aires / Havana Conventions with the aim of the worldwide unification of the laws.

In addition , the General Assembly of the League of Nations in 1935 mandated two International Institutes with the relevant work . Many options were explored at that time , such as one universal convention replacing the existing ones , or a roof convention under which the existing Conventions of Berne and Buenos Aires / Havana would be maintained but linked . The Second World War interrupted this and other preparatory work . After the Second World War, these plans were no longer pursued in the framework of the Berne Convention but by the newly established UNESCO .

When UNESCO started work on these plans in initial meetings of it’s copyright expert committee in 1947 and in 1949 in Paris , it became clear to the experts that the existing convention should not be replaced , and that even a roof convention should not be adopted . Instead , all countries irrespective of their membership in the existing unions and treaties , were to be able to sign and ratify the envisaged new treaty , even if they were not members of UNESCO .

On this basis , the Universal Copyright Convention was adopted on 6 September 1952 and came into force on 16th September 1955 after ratification by twelve countries . Its historical background – its aim of avoiding a lasting split into the Berne and the American protection systems – was reflected in the attendance at the Conference- Most of the Berne Union countries and American countries signed it .

Main Contents Of The Universal Copyright Convention Of 1952
To approach the aim of universal membership and thus to include countries with a need for low protections , such as developing countries ( more than in the pre-existing conventions ) , the USA and the Soviet Union , the contents of the 1952 Universal Copyright Convention had to follow a relatively minimalist approach.

The Preamble , unlike that of the Berne Convention , did not introduce the aim of protecting the rights of the authors ‘in as effective and uniform a manner as possible ‘ , but only intended to ‘assure in all countries copyright protection’ . The principle of minimum rights was hardly realized in the 1952 text ; there was only very limited translation right in addition to the very general obligation to ‘provide for the adequate and effective protection of the rights …’

Instead of Berne’s principle of ‘no formalities ‘ , Article 3(1) of the UCC permitted formalities for foreign works , but only those specified in this provision . This compromise allowed countries such as the USA to continue their requirements for domestic works , while enabling works from other UCC countries to enjoy protection in the USA or other countries if they only fulfilled the limited requirements of the UCC .

Article 4 of the UCC provided for a general minimum duration of only twenty five years , and of ten years for photographic works and works of applied art. A transitional provision even allowed any Contracting State which , at the date of entry into force of the UCC in that state , provided for certain classes of works. The duration had to be computed after the first publication of the work . Reciprocity was introduced , given the diversity of national laws on the duration .

The principle of national treatment was drafted in a slightly different way from that under the Berne Convention. The UCC in the version of 1952 also contained a definition of ‘publication’ , a rule on application in time , final and administrative clauses and framework provisions - in particular the Berne safeguard clause.

This clause was to discourage Berne Union countries from leaving the Berne Convention .The countries that adhered only to the UCC, would not be protected under the Berne Convention. Moreover, if a Berne country which was country of origin of a work under the Berne Convention withdrew from the Berne Convention after 1 January 1951 , the respective work would not be protected by the Universal Copyright Convention in the Berne countries. In addition , this provision stipulated that among Berne Union countries which were also Contracting States of the Universal Copyright Convention , the latter was not applicable in respect of works whose country of origin was a Berne country .

1971 Paris Revision
At the 1971 Paris Revision Conference which took place in combination with the Paris Revision Conference of the Berne Convention , a number of major amendments were made to the UCC. The Paris Revision was adopted on 24th July 1971 and came into force on 10th July 1974 .

First , some basic economic minimum rights in addition to the existing translation rights were introduced for works in their original form and derived therefrom : the rights of reproduction , public performance and broadcasting . At the same time , Contracting States were allowed to introduce exceptions to these rights as long as a ‘ reasonable degree of effective protection ‘ was reached . These amendments accommodated the needs of developed countries with a high standard of protection because they were not ready to grant national treatment while not receiving any guaranteed comparable protection in other Contracting states .

Another provision that favoured developing countries was a loosening of the strict Berne safeguard of the 1951 version whereby they withdraw from the Berne Union without losing the protection of the Universal Copyright Convention , on condition of deposit of a specific notifications .

The relation between the 1952 and 1971 was regulated as follows ; both were separate conventions ; accession to the 1971 text would also constitute accession to the 1952 text ; after the entry into force of the 1971 text , no country could adhere only to the 1952 text ; where only one of the two UCC members adhered to the 1952 text that text applied exclusively between them .

Development Of The Universal Copyright Convention After 1971
For some forty years , the UCC fulfilled its purpose to establish international copyright protection beyond the membership of the Berne Convention . In particular , most of those countries which were not ready to accede to the Berne Convention joined the UCC , namely most Latin American countries and the USA. Another important country that had largely stayed outside international copyright relations was Russia ,which joined the UCC as part of the Soviet Union in 1973 . In 2007 , the UCC had 100 members.

The UCC has , however , lost importance to the extent that its Contracting States also adhered to the Berne Convention because the UCC does not apply to Berne works between the UCC countries which are also Berne members . Mainly since the end of the 1980’ s many UCC countries also adhered to the Berne Union ,as in particular the USA in 1989 , the Russian Federation in 1995, as well as many other former Soviet countries and some Central and Eastern European countries since the early 1990s.

Others that had not been a member of the UCC directly also adhered to the Berne convention such as China , 1992. Another wave of accessions to the Berne Conventions was indirectly due to the bilateral agreements initiated by the USA since the end of the 1980’s by which countries were mostly obliged or at least encouraged to accede to the Berne Convention if they were not members yet.

Also the TRIPS agreement , 1994 had a similar effect ; although it did not oblige its members to accede to the Berne Convention , it required compliance with the Berne substantive standards , so that countries which had to comply with them anyway usually decided also to become Berne members .

In 2007 , only Laos remains as a party to the UCC but not the Berne Convention for the TRIPS Agreement . This country , has begun measures to accede to the WTO / TRIPS Agreement and the Berne Convention , such that the UCC will no longer apply to the Laos in the foreseeable future .

In the future , other countries might bring life back to the UCC , namely those countries which are not yet parties to any multilateral instrument covering copyright protection . For the same reasons that the UCC originally attracted acceptance , these countries might adhere to the UCC as an initial step towards international copyright protection , then they will directly adhere to the Berne Convention ( as did China 1992 ) , the WTO / TRIPS Agreement , or both . Indeed , all of the above countries except Eritrea ,San Marino and Somalia who have applied for WTO membership.

Prospects For The Role Of UCC In The Future
Although the UCC may be more favourable to developing countries that have not yet a highly developed infrastructure or cultural industry – and it was indeed the UCC's purpose to enable in particular countries with a low level of development to become part of the international copyright community – it is rather unlikely that they would denounce the BC, the WTO/TRIPS Agreement or even the WCT, particularly because many countries have an interest in being part at least in the WTO be it for other reasons than intellectual property.

#Often, they have to provide for a higher level of protection under bilateral treaties anyway. In other words, even in the current situation where it seems that many countries would like to be under lower level obligations in the field of international copyright, it may not be expected that they would denounce the BC, the TRIPS Agreement and the WCT respectively and thereby allow the application of the UCC.
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# The Inter American Conventions of Buenos Aires(1910), Havana(1928), and Washington (1946)which was adopted with the leadership of USA.
# On 1st January 1952, Brazil and Canada were the only Berne Union members from the Americas.
# The International Institute for Intellectual Cooperation and International Institute of Rome for the Unification of Private Law.
# UNESCO’s first programme in the field of Copyright which included a universal convention reflected its focus on education and science and the view that copyright would be an obstacle to free circulation of information-a view that was later revised.
# Since the UCC was adopted in Geneva, it is also often referred to as ‘the Geneva Convention.’
# Articles V to I of the Geneva Text, 1952
# Art VI of the UCC, 1952.
# No application of the UCC to works that are already in the public domain in the country where protection is claimed. (Art.VII of the UCC 1952)
# Articles VIII-XVI and XVII-XXI
# Article XVII

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