A study on the Paris Convention and Berne Convention in relation to protection of Intellectual property

A study on the Paris Convention and Berne Convention in relation to protection of Intellectual property

To provide legitimacy and a streamlined regulatory mechanism for intellectual property rights, emerged two colossal conventions of international repute. The first was the Paris Convention for the Protection of Industrial Property, adopted back in 1883, and the other was the Berne Convention for the Protection of Literary and Artistic Works adopted in 1886. They remain, to this date, as some of the most iconic international treaties in the corpus of intellectual property law.

Paris Convention under the Spotlight

The convention fit with the challenge of ensuring industrial property rights across borders. Some of the problems were indeed addressed at The Convention during the International Exhibition of Inventions held in Vienna during the year 1873, when foreign investors surprisingly shunned venturing in as the legal protection for their inventions was rather weak. Starting as a small group of eleven signatories it has now become the cornerstone for the protection of intellectual rights at the international level, covering 179 contracting parties.

The history of the Convention goes back to the young Austro-Hungarian Empire, when the first germ of international protection for IP materialized. Following Vienna Exhibition alarms, the International Congress on Industrial Property in Paris in 1878 created the first planks of what would soon become the Paris Convention. The convention was signed for the first time on March 20, 1883, by fairly enlightened countries, namely France, Belgium, and Brazil. Since its creation, the Convention has changed with six major revisions: Brussels, 1900; Washington, 1911; The Hague, 1925; London, 1934; Lisbon, 1958; and Stockholm, 1967. The last amendment is from 1979, which calls for outstanding adaptability to new industrial norms and landscapes in technology.

Also Read: A Study on Copyright and Neighbouring Rights

The Convention casts a very wide net in the universe of IP Rights which cover patents, trademarks, industrial designs, utility models, service marks, trade names, geographical indications, and protection against unfair competition. All this underpinning space is supported by three fundamental pillars-the spinal strength of the framework of the Convention.

The first is the principle of ‘national treatment’. Each contracting state has to ensure that nationals of other contracting states receive the same level of protection under its law as is accorded to its own nationals – a mutual protection scheme. Such principle extends to the nationals of non-contracting states who are domiciled or have established commercial presence in a contracting state. This principle ensures equal treatment in the protection of industrial property rights across borders.

The second pillar of the treaty involves priority rights. Under this principle, applicants are given a priority period within which, maintaining the priority of the original filing date, they can submit their applications in other contracting states. Such a priority period shall run for 12 months in patent and utility model applications, and 6 months in industrial design and trademark applications. This provision has still remained to be a very worthwhile resource for the businesses and the inventors for pursuing protection of their works across the globe. Third, by insisting on uniform standards throughout all contracting states, common rules are provided that must apply to all member states in their jurisdiction. These relate to the independence of patents across jurisdictions, the right of the inventor to be named in the patent, their restriction on compulsory licensing, protection of well-known trademarks, and safeguarding against false indications of source. They allow for minimum standards of care and protection across contracting states, however this is strictly adhered to but with flexibility in its implementation.

A sequence of simplified international filing procedures provides a stronghold for intellectual property rights holders, predictable protection standards across member states and protection against unauthorized use of state emblems and official hallmarks. These benefits have led to efficient access to world innovation and trade by clearly laying out international IP protection.

However, this Convention faces certain drawbacks in the modern day scenario. With the innovation of the digital age and harmonization with other international treaties on IP, the convention seems to be losing some touch in this developed world. Second comes the mammoth challenge for the Convention to strike a balance between national sovereignty and international obligations and deal with emerging technologies and new forms of industrial property. The pace at which the technology is now moving is unprecedented, and the ability of the Convention to accommodate these changes of the future is of the essence.

Paris remains the firm foundation of international intellectual property protection. After more than a century, the principles of national treatment, priority rights, and common rules introduced by the Convention are holding up well to enable considerable innovation and trade across international borders. Now, the challenge of new technologies and evolved forms of industrial property continues to pose before the international community. The flexible framework of the Convention thus stands as highly relevant and necessary for modern protection of intellectual property.

A ‘Berne-ing’ Topic

The Berne Convention for the Protection of Literary and Artistic Works is indeed a milestone in international intellectual property law. Founded in 1886, this historic accord changed the way creative works are dealt with across borders. The Convention came to exist at a time when international copyright protection was rather fractured and patchy, giving rise to the need for a unified framework to shape intellectual property rights in our modern digital age. Much like the lacunae that existed in a post-Paris world, this convention fills it in. At its core, the Convention is also built upon certain fundamental principles.

‘Automatic protection’ became a standing principle which represented an important divergence from the more traditional copyright formalities. It removed bureaucracy and ensured all creative works are protected immediately across member states. ‘Independence of protection’, another grounding principle, referenced that copyright protection exists independently of whether it is protected in the work’s country of origin. However, the copyright of a work can lapse in its country of origin, and member states may then decide to cease protection of it. The Convention defines protected works broadly; they encompass “every production in the literary, scientific and artistic domain, whatever the mode or form of its expression.” This broad definition has been surprisingly flexible to innovation in technology and the expression of creativity.

The Convention provides authors with exclusive rights. Some of these rights include the rights to translate, make adaptations and arrangements, perform works in public, broadcast and communicate to the public, reproduce in any manner or form, and use works as a basis for audiovisual content. In addition to the above economic rights, the Convention recognizes the moral rights of the author: the right to the name of the author, the right to object to any distortions of the work which may harm their reputation, and the right to safeguard their work. Concerning duration of protection, the Convention sets out minimum terms in various respects. The general term offers protection for the life of the author plus 50 years. Works whose authorship is unknown or disclosed anonymously or under a pseudonym are protected for 50 years from the date of their lawful public disclosure. Audiovisual works enjoy protection for 50 years from the date of first public exercise or communication to the public. Finally, works of applied art and photography are protected for at least 25 years from the date of their creation.

The Convention also provides for certain limitations on copyright protection, known as “free uses.” Provisions of reproduction in special cases, quotations and educational use, news reporting and ephemeral recordings for broadcasting come under these. The Appendix to the Convention specifically makes special provisions for developing nations by permitting them to grant non-voluntary licenses for translations and reproduction of works for educational purposes upon fair compensation. The principles have been included in many other international documents and national legislations of recent times.

Its three-step test to examine exceptions and limitations has become a worldwide benchmark in analyzing copyright exceptions. The administration of the Convention through WIPO ensures its continuing relevance and adaptation to technological and cultural changes. The more so, as the Convention’s principles will be a further strong foundation for answers by new challenges in the protection of intellectual property while developing society and moving into the realm of the digital era. It was obvious that the Convention has a future and would be relevant over the years, since it adapts as needed, demonstrating an essential role in the international necessary creative exchange and the protection of rights and works of creators.

Paris and Berne Conventions are often considered to be the founding stones for international protection of IP rights. The Paris Convention protects industrial property rights with national treatment and priority rights; on the other hand, the Berne Convention protects literary and artistic works automatically. They have weathered modern challenges and continue to adapt and serve the current needs of global IP protection.

Citations

•  Paris Convention for the Protection of Industrial Property (as amended on September 28, 1979)
•  World Intellectual Property Organization (WIPO), “Summary of the Paris Convention for the Protection of Industrial Property (1883)”
•  International Bureau of WIPO, “WIPO-Administered Treaties: Paris Convention for the Protection of Industrial Property”
•  Bodenhausen, G.H.C., “Guide to the Application of the Paris Convention for the Protection of Industrial Property” (1968)
•  Berne Convention for the Protection of Literary and Artistic Works, Art. 5(1), 1886 (revised 1971).
• WIPO, “Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886).”
• A Gupta, ‘Critically Discuss the Continued Relevance of the Berne Convention for the Protection of Literary and Artistic Works (1886)’ (2019)