The United States and the Berne Convention: The Question of Moral Rights

by jakecarberry

The Berne Convention for the Protection of Literary and Artistic Works, established in 1886 in Berne, Switzerland, is the oldest, but also one of the most important, multilateral copyright treaties. Members of the Berne Union are required to recognize the copyright of works of authors and creators from other members of the Berne Union as it recognizes the copyright of its own citizens.(1) The Berne provisions were widely accepted, but the United States refused to become a party to the convention for over a century, as it would have required major amendments to their domestic copyright laws. One of the main issues for the US was the stipulation that they would need to remove many of the formalities in use domestically, such as those involved in the registration of copyright works and mandatory copyright notice. Perhaps the greatest obstacle, however, was the fiercely debated notion of ‘moral rights’. The US did not wish to recognize or include moral rights in the international intellectual property framework whereas, and as outlined in Article 6bis, the Berne Convention did acknowledge and protect moral rights, and specifically the “attribution” and “integrity” of the artist. (2) Despite their stance on moral rights, the US did eventually sign the Berne Convention in 1988, and it is thus significant to examine their reasons for doing so.

Firstly, it is important to explore the US’ initial reluctance to join the Berne Convention. As aforementioned, the main stumbling block was the acknowledgement of moral rights. The US felt that domestically it already accommodated moral rights through statutory and common law channels, and that evidence of the recognition of moral rights could be found in their contract, trademark and tort laws. (3) Moreover, the US was wary of the relationship, or lack thereof, between moral and economic rights in the Berne Convention. These rights were seen as entirely separate and so even after the transfer of economic rights (the sale of a piece of art for example) the artist retains moral rights over his creation (4), which of course could prove problematic. This protection also exists after the death of the artist, at least until the expiration of the economic rights. It can also be seen that, independently of the convention, the US had found other successful means of protection through various multilateral and bilateral agreements and the back-door provision to the Berne Convention: that is, the protection of non-Berne members by Berne if they simultaneously publish domestically and in a Berne-member state. (5)

That being said, the US did eventually sign the Berne Convention, and arguably not due to any great need for increased protection – as we have seen, the US could protect itself through the various agreements mentioned above. Rather, it seems a means of appearing more active in IP enforcement and increasing credibility, and thus negotiating power, in the period leading up to the 1994 General Agreement on Tariffs and Trade wherein the US was trying to push through a trade-centric IP agreement that would become known as TRIPS.

(2) Article 6bis,
(4)Article 6bis, 7,