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Reports of the Various Diplomatic Conferences
1884 First Conference in Berne 53 1885 Second Conference in Berne 103 1886 Third Conference in Berne 149 1896 Conference in Paris 160 1908 Conference in Berlin 178 1928 Conference in Rome 223 1948 Conference in Brussels 256 1967 Conference in Stockholm 283 1971 Conference in Paris 330 Rigi-App2(1)qxd 19/11/05 18:38 Page 52 Rigi-App2(1)qxd 19/11/05 18:38 Page 53
APPENDIX 2 Records of the International Conference for the Protection of Authors’ Rights
Convened in Berne September 8 to 19, 1884
PRELIMINARIES TO THE nations, to constitute the text of a universal CONFERENCE convention. Literary and artistic property has the same At the request of a committee composed of Swiss cosmopolitan character as thought itself. It is men of letters, artists, lawyers and publishers, the therefore not surprising that, in our century of Federal Council offered the hall of the Council of international conventions, one should have States for the meetings of the Conference, and sought to unify the legislation of the various was represented at it by one of its members, States on this subject, and to bring together the Mr.Numa Droz, Head of the Federal Department greatest possible number of the latter in a of Commerce and Agriculture. Union similar to the General Postal Union, The Berne Conference lasted from which has already proved its worth. September 10 to 13, 1883. Its work is summa- This aim was mainly pursued by the rized in the draft Convention on which it voted Association for the Codification and Reform of at its meeting on September 13. It regarded the the Law of Nations and by the International draft as no more than a basis for discussion Literary Association. The latter Association, which it proposed to the Federal Council with which was founded in 1878, took upon itself, as a view to the consideration of a draft its main task, ‘to propagate and defend the prin- Convention to be submitted to a diplomatic ciples of intellectual property in all countries, to conference for examination. The text of the study international conventions and to work on draft follows: their improvement.’ In the Congress that it held in Rome in 1882, it decided that a Conference Draft Convention for would meet in Berne in 1883 to lay the founda- the Establishment of a tions of a programme that could serve as the General Union for the formula for a universal convention. That Protection of the Conference was to be composed of delegates of literary societies, universities, academies, associ- Rights of Authors in ations, circles of men of letters, artists, writers Their Literary and and publishers belonging to the various nations, Artistic Works and to have the following as its programme: Article 1. The authors of literary and artistic (1) to consider the state of legislation on works that have appeared or been presented or literary property in various countries; performed in one of the Contracting States, on (2) to consider the important points on which the sole condition that they comply with the it is possible to achieve unification for the formalities laid down by the law of that country, purposes of a Literary Property Union; shall enjoy, for the protection of their works in the other States of the Union, regardless more- (3) to draft clear and concise articles, sum- over of their nationality, the same rights as marizing the principles acceptable to all nationals. Rigi-App2(1)qxd 19/11/05 18:38 Page 54
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Article 2. The expression ‘literary and artistic of the States of the Union shall deposit those of works’ shall include: books, pamphlets or any its laws, decrees and regulations that have other writings; dramatic or dramatico-musical already been promulgated or will be in the works, musical compositions with or without future concerning the rights of authors. words and arrangements of music; works of That Bureau shall compile them and shall drawing, painting, sculpture and engraving, publish a periodical journal in French which lithographs, maps, plans, scientific diagrams, shall contain all such documents and informa- and in general any literary, scientific and artis- tion as it is necessary to make known to those tic work that may be published by any system interested. of printing or reproduction. Article 3. The rights of authors shall also apply Having accepted the mission entrusted to it by to manuscripts or unpublished works. the Conference, namely to endeavour to estab- lish between the nations, for the protection of Article 4. The lawful agents or representatives the rights of authors, a general Union based of authors shall in every respect enjoy the same on the principles set forth in the draft rights as are granted by this Convention to the Convention that had just been drawn up, the authors themselves. Federal Council addressed to the Governments Article 5. Authors who are nationals of one of of all civilized countries the following circular the Contracting States shall, in all the other letter, dated December 3, 1883, with which it States of the Union, enjoy the exclusive right of enclosed the text of the draft, and the minutes translation throughout the duration of the of the Conference: rights in their original works. ‘The protection of the rights of the authors of That right shall include the rights of publi- works of literature and art (literary and artistic cation or performance. property) is tending to become more and more Article 6. An authorized translation shall be the subject of international conventions. It is protected in the same way as the original work. indeed in the nature of things that the works of Where the translation is of a work that has fallen man’s genius, once it has seen the light, should into the public domain, the translator may not not be allowed to be restricted to a single country object to the same work being translated by and a single nationality; if it is of any value, it loses other writers. no time in spreading to all countries in forms that Article 7. In the event of violation of the fore- may vary to a greater or lesser extent, but which going provisions, the competent courts shall nevertheless allow the creative thought to subsist apply the provisions, both civil and criminal, in essence and in its principal manifestations. that have been enacted by the legislation con- That is why, now that all civilized States have rec- cerned as if the violation had been committed ognized and guaranteed by domestic legislation against a national. the rights of the writer and artist in their Adaptation shall be considered infringe- works, there has appeared the pressing need to ment and proceeded against in the same way. protect that right also in international relations, Article 8. This Convention shall apply to all which are developing and increasing daily. It is to works that have not yet fallen into the public that need that one has striven to respond with the domain in the country of origin at the time of numerous conventions concluded in recent years its entry into force. between the principal States. ‘However, whatever may be the advantages Article 9. It is understood that the States of the offered by those conventions, it has to be Union reserve the right to make special acknowledged that they are far from affording arrangements between themselves for the pro- uniform, efficacious and full protection of tection of literary and artistic works, provided authors’ rights. This shortcoming is unques- always that such arrangements in no way con- tionably related to the diversity of national leg- travene the provisions of this Convention. islation, which the system introduced by the Article 10. A central and international Bureau Convention has necessarily had to take into shall be established at which the Governments consideration.
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‘The inequalities and indeed serious gaps in a literary or artistic work, whatever his nationality present international law were bound to have a and the place of reproduction, must be protected serious effect on those concerned, authors, everywhere on the same footing as the citizens of publishers or other entitled persons. This is every nation. why we see the utmost efforts being made on Once this fundamental principle, which is their part to bring about, on the one hand, the not in conflict with any existing convention, has universal recognition of the rights of authors been acknowledged, and once the General without distinction as to nationality, and on Union has been established on that basis, it is the other hand the desirable uniformity in the beyond doubt that, under the influence of the principles governing the subject. exchange of views that would take place between ‘It is to a large extent for the achievement of the States of the Union, the more blatant differ- this aim that the International Literary ences existing in international law would be Association was founded in 1878; it numbers removed one after another and would give way among its members eminent representatives of to a more uniform and hence more sure regime a great number of countries, and since that year for authors and their successors in title. has annually held a General Congress in vari- It is with this in mind that the Swiss Federal ous capitals of Europe. Council feels able to impress upon the ‘On the initiative of this Association, a Governments of all countries its endorsement Conference of delegates met in Berne last of the request made by the International September to discuss the bases of a General Literary Association. If, as it hopes, this initia- Union for the Protection of Authors’ Rights. It tive is favourably received, it will be honoured drew up a draft Convention for the purpose, to and pleased to invite them to send representa- be submitted to the Governments of all civi- tives, in the course of the coming year, to attend lized countries for their kind consideration, a diplomatic conference which will consider and it asked the Swiss Federal Council to con- which of the common provisions that the state vey it to them with the proposal that a diplo- of the domestic legislation of each country or matic conference be convened to examine it. alternatively the state of international law make ‘In view of the usefulness and greatness of it possible to adopt at the present time. the work undertaken, which is in response to a The Federal Council hopes that your universally acknowledged sentiment of justice, Government will be so kind as to make its the Swiss Federal Council did not hesitate to views known on this subject, and takes this accept the mission. It is discharging that mis- opportunity, etc.’ sion today by conveying to you the minutes of The initiative taken by the Federal Council the International Literary Conference of was indeed favourably received. Germany, the Berne, which on page 19 contain the draft Argentine Republic, Colombia, El Salvador, Convention that the Conference wishes to see France, Great Britain, Guatemala, Italy, adopted by all States. Luxembourg and Sweden and Norway imme- ‘The Federal Council did not conceal from diately declared that they would be represented the initiators of the project that it could see diffi- at the Diplomatic Conference. culties facing its immediate achievement in full Other States which had not replied to the first measure: conventions recently concluded or in circular nevertheless sent delegates to the force for a certain number of years are more or Conference, namely Austria-Hungary, Belgium, less in contradiction with one portion or Costa Rica, Haiti, the Netherlands and Paraguay. another of the provisions of the draft, and those Greece and Denmark, the Republics of conventions should not be expected to be read- Santo Domingo and Nicaragua and the United ily susceptible of amendment before they expire. Mexican States gave a negative reply, either in ‘On the other hand, it would certainly be a consideration of the state of their legislation on great advantage if a general understanding the subject or on account of the low level of could be achieved at the outset whereby that development attained by their literature. exalted principle, that principle so to speak of Bulgaria and the United States of America did natural law, were proclaimed: that the author of not pronounce on their participation in the
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Conference. The latter country explained its were to meet with a favourable response from the position to the Federal Council in a note which High Governments, it would do itself the hon- in somewhat abridged form reads as follows: our of inviting them to be represented at a con- ‘The Government of the United States is in prin- ference that could be convened in the course of ciple disposed to accept the rule that the author 1884. of a literary or artistic work, whatever his nation- ‘The Swiss Federal Council is now able to ality and the place of reproduction of the work, observe with pleasure that its initiative has been must be protected everywhere as a national. In crowned with success. It feels duty-bound to practice, however, the Government sees great express to the High Governments all its gratitude obstacles to accommodating all countries within for the favourable reception that they have been one and the same Convention. Differences of kind enough to give to its proposal, and it does tariffs, and the fact that a number of industries in not despair of achieving, with their invaluable addition to the author or the artist are concerned assistance, the exalted goal that it has set itself. with the production or reproduction of a book or ‘It is apparent from the notes received that, in a work of art, have to be taken into account when principle, there is general acceptance of the fun- one considers the grant to the author of a work of damental idea of the draft of the International the right to have it reproduced or to prevent its Literary Association, according to which all civi- reproduction in all countries. There is a distinc- lized States should extend to literary and artistic tion to be made between the painter or sculptor, creations that see the light in another State the whose work goes on to the market in the form protection that they themselves grant to the in which it left his hands, and the literary author, products of indigenous work; this general agree- to whose work the paper manufacturer, the type- ment thus creates a broad foundation on which setter, the printer, the binder and many other one must seek to build a new edifice. It will be a persons in business all contribute.’ question first of considering in what way that can Encouraged by the reception given to its be done without encroaching too seriously on approach, the Federal Council decided to con- the domestic legislation of specific States, or on vene a diplomatic conference in Berne on existing international conventions. The Federal September 8, and to that end addressed to the Council considers that the projected conference various governments, on June 28, 1884, a cir- must not take such resolutions as will bind the cular letter worded as follows: various States, but that it must have a preliminary ‘On December 3, 1883, the Swiss Federal character and set itself no task other than that of Council had the honour to convey to Your laying down the general principles that have the Excellency the draft Convention drawn up by best prospects of being realized under present cir- the International Literary Association with a view cumstances. The provisional results thus to the establishment of a “General Union for the obtained would then be submitted to the High Protection of the Rights of Authors in Their Literary Governments for consideration, and then it and Artistic Works.” On that occasion it voiced the would be ascertained whether there is a possibil- idea that there would be a genuine advantage in ity of forming the projected General Union. the achievement, between the Governments of Encouraged by the alacrity of the response all civilized countries, of a general agreement on received from the High Governments, the Swiss the great principle underlying the Association, Federal Council has resolved to convene a diplo- according to which protection as efficacious as matic conference in Berne on September 8, to possible, transcending political frontiers, should meet at 10 a.m. in the hall of the Council of be afforded to the products of the human mind States, and it has the honour to invite Your in the exalted field of literature and art; moreover, Excellency to be represented thereat. The Federal it saw fit to indicate that a diplomatic conference Council is pleased to hope that the common seemed to it the best means of determining work of the distinguished delegates who will whether, and if so in what way, one could reach a meet in Berne will succeed in achieving further common agreement on the international protec- progress with the great work that has been begun. tion to be accorded to authors of literary and ‘The Federal Council takes upon itself to artistic works, and it added that, if its proposal convey to the High Governments in due course
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a draft and such documents as might serve as a rights, subject to compliance with the formalities basis for the deliberations of the Conference. and conditions prescribed by law in the country ‘The Swiss Federal Council requests Your of origin of the work. Excellency to be so kind as to inform it whether 3. The subjects or citizens of States not forming it may count on the participation of the part of the Union who are domiciled, or have Government of...in the International their work published, on the territory of one of Conference whose date is set above, and takes the States of the Union shall be treated in the this opportunity to renew, etc.’ same way as the subjects or citizens of Proceeding with the preparatory work on the Contracting States. Conference, the Federal Council has drawn up 4. The expression ‘literary or artistic works’ a draft Programme which may perhaps serve as shall include books, pamphlets or any other a basis for it, and has submitted it to the various writings; dramatic or dramatico-musical Powers with its circular letter of August 22, works, musical compositions with or without 1884. The text of this draft is to be found below. words and arrangments of music; works of Finally, in order that the honourable delegates drawing, painting, sculpture and engraving, may be given an overall view of legislation in the lithographs, maps, plans, scientific diagrams, field that concerns us, the Federal Council has and in general any literary, scientific and artis- arranged for a Concordance Table of Laws and tic work that may be published by any system Treaties on Literary and Artistic Property to be of printing or reproduction. drawn up, in which an attempt has been made to summarize as clearly as possible the present state 5. The rights of authors shall also apply to of the subject in the civilized world. This manuscript or unpublished works. Concordance Table has been printed separately. 6. The lawful agents or representatives of authors shall in every respect enjoy the same rights as are granted by this Convention to the authors themselves. Programme 7. Authors who are nationals of one of the Proposed Contracting States shall, in all the other States of the Union, enjoy the exclusive right of trans- By the Swiss Federal Council lation throughout the duration of the rights in for the their original works (with the possible addition of ‘if they have availed themselves of that right International Conference of within a period of ten years’). That right shall include the rights of September 8, 1884 publication or performance. in 8. An authorized translation shall be protected Berne in the same way as the original work. Where the translation is of a work that has 1. The Contracting States (listed) are consti- fallen into the public domain, the translator tuted into a Union for the protection of the rights may not object to the same work being trans- of authors in their literary and artistic works. lated by other writers. 2. The subjects or citizens of any of the 9. Any infringing work may be seized on Contracting States shall enjoy in all the other import into those countries of the Union where States of the Union, with respect to the protec- the original work enjoys legal protection. tion of the rights of authors in their literary and The seizure shall take place in accordance artistic works, such advantages as the laws con- with the domestic legislation of each country, cerned do now or may hereafter grant to their at the request either of the Public Prosecutor or own nationals. Consequently they shall have of the interested party. the same protection as the latter and the same 10. Adaptation shall be considered infringe- legal remedies against any violation of their ment and proceeded against in the same way.
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11. This Convention shall apply to all works that Such denunciation shall be made to the have not yet fallen into the public domain in the Government authorized to receive accessions. country of origin at the time of its entry into force. It shall only take effect for the State making it, 12. It is understood that the High Contracting the Convention remaining in full force and Parties reserve the right to make special arrange- effect for the other Contracting Parties. ments between themselves for the protection of 18. This Convention shall be ratified, and the literary and artistic works, provided always that ratifications exchanged at.....within one such arrangements in no way contravene the year at the latest. provisions of this Convention. 13. An international bureau shall be estab- Transitional Provision lished, under the name of ‘Bureau of the Any conventions at present in force between International Union for the Protection of Contracting States that may depart from this Literary and Artistic Works.’ Convention on one point or another may nev- This Bureau, the expenses of which shall be ertheless remain in force until the date specified borne by the administrations of all the by them for expiry. In such cases, the subjects Contracting States, shall be placed under the or citizens of States of the Union not bound by high authority of....., and shall work under those conventions shall be given the benefit, in its supervision. The functions of the Bureau the States concerned, of the most-favoured- shall be determined by common consent nation treatment with respect to the protection between the countries of the Union. of their authors’ rights. 14. This Convention shall be subject to peri- odical revision for the purpose of introducing Final Protocol therein amendments intended to perfect the At the time of effecting the signature of the system of the Union. Convention concluded this day, the under- To that end, Conferences shall be held suc- signed Plenipotentiaries have agreed as follows: cessively in one of the Contracting States between delegates of those States. 1. It is understood that the final provision of The next meeting shall take place Article 2 of the Convention is without any in...... (place), in...... (year). prejudice to the legislation of each of the 15. States that have not become party to this Contracting States concerning the procedure Convention shall be allowed to accede to it on to be followed before the courts and the application. competence of those courts. Such accession shall be notified in writing to 2. The definition of the words ‘arrangements the Government of....., and by it to all the of music’ (Article 4 of the Convention) shall others. not cover pieces reproduced by automatic Such accession shall imply full acceptance of instruments such as electric pianos, music all the clauses and admission to all the advan- boxes, fairground organs, etc. tages provided for in this Convention. 3. The exact meaning of the word ‘adaptation’ 16. The implementation of the mutual com- requires definition. mitments written into this Convention shall be subject, as necessary, to compliance with the 4. The International Bureau has to be orga- formalities and rules laid down by the constitu- nized; its budget and the co.ntributions of the tional laws of those of the High Contracting States of the Union have to be decided upon. Parties that are bound to propose the applica- Functions. The International Bureau shall tion thereof, which they undertake to do collect all kinds of information regarding the within the shortest possible time. protection of the rights of authors in their liter- 17. This Convention shall be put in force as ary and artistic works, and arrange them into a from....., and shall remain in force for an general statistical work to be distributed to all indefinite period until the expiry of one year administrations. It shall receive from each from the day on which it is denounced. administration a list of the works registered by
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it, and communicate that list to all the other at the Ministry of administrations. It shall undertake studies on Justice of Austria. questions of general interest concerning the For Hungary: Union and, with the aid of documents placed Mr. Jules Zádor, at its disposal by the various administrations, Counsellor at the shall publish a periodical review in French on Ministry of Justice of the questions which concern the purpose of Hungary. the Union. Belgium Count G. Errembault de The manner of distribution of the periodical Dudzeele, Counsellor has to be decided upon. at the Belgian Legation, The International Bureau shall always be at Berne. the disposal of members of the Union with a France H. E. Mr. Emmanuel view to furnishing them with any special Arago, Senator, Ambas- information that they may require concerning sador of France to the the protection of literary and artistic works. Swiss Confederation, The administration of the country in which Berne. the next Conference is to meet shall prepare the Mr. Louis Ulbach, programme of the Conference with the President of the assistance of the International Bureau. International Literary The Director of the International Bureau Association. shall attend the meetings of Conferences, and Germany Mr. Reichardt, Private take part in the discussions without the right to Legation Counsellor, vote. He shall make an annual report on his Reporting Counsellor to the Foreign Affairs administration, which shall be communicated Department of the to all the members of the Union. German Empire. The official language of the International Dr. Meyer, Private Bureau shall be French. Regency Counsellor to This Final Protocol, which shall be ratified at the Department of the same time as the Convention concluded Justice of the German this day, shall be regarded as forming an Empire. integral part thereof and shall have the same Dr. Dambach, Senior force, validity and duration. Private Counsellor for Posts, Professor of Law Minutes at the University of Berlin. of the Great Britain H.E. Mr. F.O. Adams, C.B., Envoy Extra- First Meeting ordinary and Minister of the Plenipotentiary of Her Britannic Majesty in Conference for the Switzerland. Protection of Authors’ Haiti Dr. Louis-Joseph Janvier, Rights Diplomate of the School of Political September 8, 1884 Science of Paris. Italy (A Delegation was The meeting opened at 10.15 a.m. in the Hall of announced, but the the Council of States. The following were present: names of the Austria-Hungary For Austria: Delegates, who were Dr. Emil Steinbach, not yet at Berne, had Ministerial Counsellor not yet been notified
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to the Federal for the safeguarding and defense of their rights, Council) and we have the pleasure of having in our midst Netherlands Mr. B.L. Verwey, Consul the President of that Association in the person General of His of Mr. Louis Ulbach, the Delegate of the Majesty the King of French Government. Last year the Delegates of the Netherlands to the that Association met in this very hall to formu- Swiss Confederation. late the wishes that they addressed to the Sweden and For Sweden: Governments of all civilized States. They then Norway Mr. A. Lagerheim, presented them to the Federal Council, more Secretary General of or less in the following terms: We are the work- the Ministry of ers of the mind; our work is unquestionably Foreign Affairs. beneficial to mankind, which it has the effect of For Norway: instructing, enlightening, elevating and civiliz- Mr. F. Baetzmann, ing still further; we consider ourselves entitled Honorary Vice- like other men to the fruits of our labour. We President of the Inter- are appreciative of the efforts that the majority national Literary of Governments have made to ensure the Association. protection of our rights either by domestic Switzerland Federal Councillor Louis legislation or by means of international con- Ruchonnet, Head of ventions. We do, however, take the liberty of the Federal Depar- saying that there exists between those various tment of Justice and national and international laws so little confor- Police. mity that we ultimately become decidedly Federal Councillor Numa unsure of our rights. We therefore request you Droz, Head of the to take our interests in hand and to impress Federal Department upon other States how desirable it would be, in of Commerce and this field of art and letters which as a rule can- Agriculture. not be confined by political frontiers, to Mr. A. d’Orelli, Professor achieve the creation of a regime that genuinely of Law at the protects rights, and to that end to lay the foun- University of Zurich. dations of a universal Union whose purpose Mr. LOUIS RENAULT, Professor of would be to establish, if not at the outset at least International Law at the Law Faculty of Paris, progressively, a uniformity of principles and of who had been appointed by the French application of those principles which the Government to attend the Conference, was organization of various States can provide. unexpectedly prevented from doing so, and ‘Gentlemen, the Federal Council did not was replaced by the Consul General, hesitate to accept this honourable mission. It Mr. LAVOLLÉE, who was to arrive on the seemed to it that here was a work of interna- following day. tional justice to which Switzerland should not Federal Councillor Numa Droz opened the refuse its support, all the less so as our country meeting with the following address: has always set great store, under such circum- ‘Gentlemen, stances, by acting as intermediary in all aspira- ‘The Swiss Federal Council has entrusted tions of this kind, and thereby playing a role, my colleague Mr. Ruchonnet and myself with albeit modest, yet which we consider useful, in opening this Conference and bidding you wel- the concert of nations. come. ‘The favourable reception that our invitation ‘The first initiative for the holding of this was given by all States, and the favourable meeting is due not to a Government wishing to replies that the majority of them have sent us, settle international difficulties, but to the are a testimony to the general interest in reme- actual writers and artists of all countries and of dying the deficiencies complained of. While all languages who have formed an association the places of certain States that we had hoped
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would be taking part are still empty, we are treatment for foreigners, or, as certain legal firmly convinced that they will not remain so advisors have proposed, to the author being as for long. This gathering of so many eminent it were followed in every State by the law of his delegates, representing the principal and most country of origin? If, as the Federal Council ancient centres of literature and the arts, proposes, the first system is adopted, how is the affords us safe assurance of that, at the same term of protection, which varies so much from time as it augurs well for the outcome of this State to State, to be calculated? Will it be Conference. according to the law of the country of origin or ‘There is hardly any area of law, Gentlemen, according to national law? Alternatively will that has as cosmopolitan a character and lends both be taken as the basis, on the principle that itself better to international codification than the term will not, in any State, exceed that that with which we are going to concern our- granted in the country of origin? Or again, will selves. We are living in a century in which this point be left to be dealt with in special works of literary and artistic genius, regardless conventions? Each of the systems has its advan- of their country of origin, very quickly spread tages and drawbacks. Your enlightened discus- all over the earth, making use of all civilized sion will serve to highlight them all in turn, languages and all forms of reproduction. Is it after which it will be easier to make an not fair that the author, regardless of his origin, informed choice. Without wishing to encroach should retain a right in his work wherever it on the deliberations that are about to start, I may be considered appropriate to make use of take the liberty of saying that, if a uniform it? And can the situation be accepted where the solution can be accepted, whatever it may be, it nature of that right varies in its essence depend- will be better than the diversity—or, dare I say ing on the place in which the work is repro- it, the confusion—that reigns in the individual duced? No, Gentlemen, it has to be conventions at present. acknowledged that the more or less serious dis- ‘A second question is that of the formalities parities between present laws are far less due to to be complied with for the recognition of considerations of principle than to purely sub- rights. Writers and artists are demanding the jective assessments. It seems possible, and in utmost simplification in this connection. A any event desirable, to replace this diversity of country recently concluded 25 conventions on arbitrary rules with one uniform rule based on literary and artistic property; if its nationals a general awareness and sanctioned by the have to comply 25 times with the formalities of assent of the majority. registration and deposit, the whole operation ‘This is the aim that we are going to strive to becomes overly intricate and costly. And yet attain, but without any of us closing our eyes to that is not essential from the point of view of the obstacles standing in the way of its attain- the recognition of rights which, once duly ment. We have to contend with domestic laws secured in the country of origin, can without and with existing conventions. We cannot real- any difficulty be accepted as being valid in all istically expect them to be amended, from one the other countries. You will determine, day to the next as it were, in response to our res- Gentlemen, whether it is possible to accede to olutions. However, a great, a decisive step this desire which, for my part, I consider to be would have been taken if we were to assert here a legitimate one. the solidarity of civilized peoples in the interest ‘The questions concerning the right of of the protection of authors’ rights, and if, translation will also be a subject of major after having exchanged our individual experi- concern to you. Literary people naturally wish ences and views, we were to establish a body to be protected for as long as possible; for them responsible for implementing our common it is a matter of pride as well as interest. On the aspirations. other hand, demands are being made in the ‘A first question that will present itself to you name of a certain public interest, which also for consideration is that of the system that is to accommodates specific interests, for the serve as a basis for a general convention. Should freedom to translate such works as have not one agree to each State having to apply national been translated, within a more or less variable
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period of time, with the author’s consent. If admire those qualities today, sure as you are that freedom is to continue to be granted, it is that no better guide could be chosen for the at the very least desirable that the term after attainment of the aim to which we are striving, which it may be enjoyed should be uniform. It which is the establishment of a form of owner- is you, Gentlemen, who will see what can be ship that represents human intelligence and done in this respect. realizes an ideal; however, I shall abstain from ‘However, whatever may be the resolutions impressing on you in turn the great significance that you adopt on these fundamental points, of the questions that have to be considered, the Convention drawn up here, which will then according to our programme, being confident have to be submitted for appreciation to the that the time will come when works of art are at eminent Governments that you represent, will home wherever they go. I merely wish to be not, even after it has been finally ratified, be your spokesman in expressing our respect and able to come into force throughout the terri- friendship to the Federal Council, and in tory of the Union. There is undoubtedly more thanking it for having appointed Mr. Droz than one point on which specific conventions and his eminent colleague Mr. Ruchonnet to at present in force will prevent that. Yet the join us. Federal Council believes that this consideration ‘Finally I propose to you that you declare is not such as will prevent us from committing Mr. Droz President of the Conference by ourselves to each other in a general convention. acclamation.’ It will be sufficient to agree on a transitional Mr. Droz accepted and thanked the delegates. provision reserving the validity of existing On a proposal by the President, the conventions until their expiry. Conference decided to adjourn the matter of ‘Far be it from me, Gentlemen, to try and appointing one or more Vice-Presidents to the anticipate your deliberations by going into following day. such detail. I merely wanted to outline, in a few The President presented, as Secretaries, broad strokes, the task before the Conference, a Mr. CHARLES SOLDAN, Judge at the Cantonal delicate task and one fraught with difficulties, Tribunal of Vaud in Lausanne, and Mr. BERNARD yet a grandiose task and one worthy of the FREY, translator at the Federal Department of efforts of a gathering such as this one, and I Commerce and Agriculture. have no doubt that, with the aid of all this The President noted that the names of all the enlightenment and all this goodwill, we shall delegates present had been notified to the accomplish it satisfactorily. Federal Council by the governments con- ‘And now it remains for me to say to you cerned, so that their official status was duly once again, in the name of the Federal Council, established. With regard to the nature of the that we are proud and pleased to welcome you powers invested in them, as for the time being it to our country, and that we will do our utmost had only to be considered whether it was to make your stay an enjoyable one. possible to lay the foundations of a general ‘I declare the Conference open, and I ask agreement which would then have to be sub- you, Gentlemen, to appoint your officers, first mitted to governments for examination and by designating a President.’ eventually, if appropriate, incorporated in a H. E. Mr. Emmanuel Arago, Ambassador of diplomatic convention, the President pro- France, replied as follows: posed, subject to whatever discussion might ‘Gentlemen, occur at the time of the draft Rules of Procedure ‘Those of you who, in this same hall, fol- (Rules 5 and 7), that the Conference confine lowed last year the work of the Literary itself to noting the fact that all the delegates had Association, whose efforts arc so well directed indeed received official instructions to represent by my friend Louis Ulbach, will not be their governments at the Conference. surprised by the speech we have just heard; they The assembly declared itself in agreement know Federal Councillor Numa Droz, and with the above view. value his straightforward mind, his sense of The assembly having thus been constituted, logic, his energy and his eloquence. All of you the President submitted to it the draft
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Rules of Procedure drawn up by the Federal and shall not be published before the end of the Council, which were discussed rule by rule and Conference’s work. adopted in the following form, with an amend- ment to Rule 7 proposed by Counsellor Rule 7 Reichardt: The draft Convention that results from the deliberations shall be subjected to final editing. Rule 1 Thereafter, if appropriate, a Protocol shall be The French language is adopted for the signed recording the results of the deliberations discussions and for the Records of the and accompanied where appropriate by the Conference. draft Convention, which moreover shall remain subject to examination by the Rule 2 Governments concerned. A general discussion shall take place on the In the course of the discussion to which the principles that should form the basis for a Rules of Procedure gave rise, it was agreed that convention. Then the Programme proposed by the title of ‘International Conference for the the Federal Council shall be referred for Protection of Authors’ Rights’ was only a provi- examination to a Committee on which each sional one, and that the adoption of a final State shall be represented. designation was reserved. The amendments proposed by the In addition, the following reservations and Committee shall be printed before being declarations were made: debated. The same shall apply, as a general rule, Following an exchange of observations to any individual proposal presented in the between Mr. Lagerheim and the President on course of the discussions and taken into the subject of Rule 2, it was understood that consideration by the Conference. delegations could, at their discretion, be repre- Rule 3 sented on the Committee by one or more of their members, as each delegation in any case As a general rule, every proposal shall be had only one vote. handed to the President in writing. On a comment by Dr. Steinbach, endorsed Rule 4 by Mr. Lagerheim and Mr. Baetzmann, the Before proceeding to vote on an article or group Conference decided that Austria, Hungary, of articles, the Conference may refer them back Sweden and Norway would each have a sepa- to the Committee for further examination. rate right to vote (Rule 5). H. E. Mr. F. O. Adams, Delegate of Great Rule 5 Britain, made the following statement: Voting shall be by names of States, called out ‘I have been empowered by my Government in their alphabetical order in French. Each to attend the Conference in a purely advisory delegation shall have one vote. capacity, and I must neither vote nor bind my Government regarding the acceptance of any Rule 6 conclusions that might be adopted by the The minutes shall give a concise account of the Conference. I am pleased to take part in it, and deliberations. They shall report all the proposals I shall not fail to make a report to my made in the course of the discussion, with the Government on its deliberations and conclu- results of votes; they shall also give a summary sions.’ account of the arguments put forward. Mr. Verwey, the Delegate of the Any member shall be entitled to demand the Netherlands, declared himself to be in the same inclusion of his speech in extenso; in that case, position as his counterpart from Great Britain. however, he shall be bound to hand the text Mr. Lagerheim, the Delegate of Sweden, thereof to the Secretariat in writing, in the declared that he would take part in the discus- course of the evening following the meeting. sions and in the voting of the Conference, but The minutes of meetings shall be submitted that he could not commit his Government in to the representatives of States in draft form, any respect whatever.
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Mr. Baetzmann, for his part, made the After the questionnaire—the text of which is following statement as Delegate of Norway: annexed to these minutes—had been read out ‘The Norwegian Government, while warmly to it, the Conference decided that it would be subscribing to the great principle whose general printed and included in the agenda of a and progressive implementation is to be the forthcoming meeting. purpose of this Conference, does not yet con- Mr. Reichardt also raised the following sider itself able to give to its Delegate the powers question in the name of the German to make, in its name, final undertakings con- Delegation, which it regarded as requiring cerning the means by which such a result could discussion before the questionnaire: ‘Instead of be achieved. Norwegian legislation still has spe- concluding a Convention based on the princi- cial characteristics that will make difficult the ple of national treatment, would it not be immediate accession of Norway to a Union preferable to work from the outset towards a such as the one at present envisaged. It is there- code providing for the uniform regulation, fore only as a quite individual opinion that I throughout the projected Union, within the take the liberty of expressing my conviction that framework of a Convention, of all provisions it will be possible, in the not too distant future, concerning the protection of copyright?’ to bring about the disappearance in Norway too The assembly having decided to consider of the obstacles still standing in the way of an the substance of the above question, it was organization whose usefulness is recognized understood that it would be included in the almost everywhere. I feel able to state that the agenda of the next meeting, which was to take Norwegian Government, by choosing to be place on the following day, Tuesday, at 10 a.m. represented on this occasion, wished above all The meeting rose at 11.30 a.m. to shew its interest in the important question IN THE NAME OF THE CONFERENCE: with which this Conference has to deal, and to keep itself informed through its Delegate of all that relates thereto.’ NUMA DROZ Dr. Steinbach, the Austrian Delegate, president having declared in his own name and in that of Mr. Zádor, his counterpart from Hungary, that Charles Soldan Bernard Frey his powers did not authorize him to sign a con- vention, and that their vote would therefore be Secretaries only provisional, H. E. Mr. Emmanuel Arago pointed out that the purpose of the Conference was not to draw up a final Convention, but to Minutes prepare a draft which would be submitted to the Governments concerned for consideration. of the The President noted that it was indeed in that sense that the Federal Council had Second Meeting expressed itself in its circular of August 22, of the 1884, in which it said that: ‘In our opinion, the outcome of the deliberations of the Conference Conference for the will thereafter be submitted for consideration Protection of Authors’ to the High Governments, which will judge at Rights another conference whether it should be made into a diplomatic instrument.’ September 9, 1884 Counsellor Reichardt announced that, with Presided over by Federal Councillor Numa a view to providing a sound basis for the delib- Droz, President erations, the German Delegation had drawn up a questionnaire that encompassed the most The meeting opened at 10.10 a.m. essential points with which the Conference had The following were present: the delegates to concern itself. who had attended the previous meeting, with
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in addition Mr. René Lavollée, Consul not materialize, of our most distinguished General of France, Dr. ès lettres, to whom the President being temporarily prevented from President adressed a few words of welcome. exercising his functions, and also the case of his The minutes of the first meeting, which had seeing fit to take the floor himself. been handed to the delegates before the start of ‘With this in mind, it appears to me to be business, were adopted. appropriate to appoint a Vice-President, but at The President informed the Conference the same time sufficient to appoint just one that he had received the following documents, Vice-President. which were at the disposal of delegates: ‘Should the Conference endorse this view, which I emphatically advise it to do, I propose (1) The draft Convention for the General to you, Gentlemen, that His Excellency the Literary and Artistic Union, a pamphlet by Ambassador of France be asked to oblige us by Commendatore Felix Carotti, representa- taking on this sole Vice-Presidency, and thus to tive of French authors in Italy, Florence accept the tribute paid not only to a distin- 1884, together with three supporting guished person and supporter of our work, but leaflets; also to France, which as we know has always (2) Project for the Unification of Laws and been the first to lend its powerful backing as International Conventions on Intellectual soon as the question has arisen of proclaiming, Property, by Mr. Francescantonio De promoting awareness of or perfecting the Marchi; protection of copyright.’ (3) A letter from the International Bureau of H. E. Mr. Emmanuel Arago accepted this Press Correspondence, Frankfurt am Main, post and thanked the Assembly for the trust expressing its great interest in the work of the thus placed in him. Conference and placing itself at the latter’s The agenda then called for the discussion of disposal for any official communications the proposal made by the German Delegation that it might wish to make to the press. at the first meeting, according to which the The Secretariat of the Conference Conference was to pronounce first on the would acknowledge receipt of the above following question: correspondence. ‘Instead of concluding a Convention based The agenda called for the appointment of on the principle of national treatment, would it one or more Vice-Presidents. not be preferable to work from the outset Counsellor Reichardt addressed the towards a code providing for the uniform regu- delegates as follows: lation, throughout the projected Union, ‘Gentlemen, within the framework of a Convention, of all ‘Our meeting does not have the character of provisions concerning the protection of copy- an actual diplomatic conference. We have the right?’ task of preparing, by dint of conscientious and Counsellor Reichardt explained the reasons consistent work, what the diplomats will one that had induced the German Delegation to day, we hope, be responsible for approving on ask for this question to be discussed first. While behalf of their Governments. noting that the international codification of ‘This character of our meeting seems to me the provisions governing the subject was to exempt us from certain procedures custom- desired by all, he feared that it might not be ary in diplomatic conference practice, being of possible to embark on it immediately, in view more formal and ceremonial than practical of the absence of representatives of a certain significance. I consider the appointment of number of Governments, and also the transfor- one or more Vice-Presidents to be one such mations that the domestic legislation of a num- procedure, at least in a case such as ours, where ber of States was undergoing at present. What there is no question of dividing the Conference he wanted was that the codification in question into sections. be specified as an objective to be pursued in the ‘However, being practical people, we have to draft that was to emerge from the work of the provide for the eventuality, which we hope will Conference.
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While subscribing to that desire, H. E. another one itself in the course of the Mr. Emmanuel Arago expressed the wish that discussion. the Conference should nevertheless proceed to Mr. Ruchonnet acceded to the desire the consideration of the questionnaire expressed, and it was understood that the vote proposed by the German Delegation. on the question would be deferred. Professor A. d’Orelli indicated that the The President then opened discussions on various kinds of legislation were a reflection of the questionnaire proposed by the German the national character of various peoples, and Delegation. that they were still likely to evolve. As the time had not yet come for the drafting of universal Question 1 legislation, it was advisable to abide by the ‘Would it not be sufficient and indeed prefer- Federal Council Programme, by means of able to grant protection under the Convention which great progress could already be made. only to those authors who are nationals of one of Mr. Louis Ulbach believed that the the Contracting States, in respect of their works, Conference had to endeavour to give its desires either in manuscript or unpublished form or the most immediately practicable form and not published in one of those countries?’ (See try to be ahead of its time. He proposed that Articles 2, 3 and 5 of the Programme; Article any wish for future codification be temporarily 1 of the 1883 draft) set aside. Mr. Lagerheim spoke on the same lines, con- Dr. Dambach criticized the provisions of sidering at the same time that the basis for the Article 3 of the Programme proposed by the Union could be established on condition that Federal Council, which in his opinion would not too much unity was sought at the outset. favour States that remained outside the Union. With a view to summarizing the ideas He proposed, on behalf of the German expressed up to that point, on which the Delegation, that protection be limited to the Assembly appeared to agree, Federal Councillor nationals of Contracting States alone, regardless Louis Ruchonnet proposed the following moreover of their actual residence. resolution: Mr. Louis Ulbach contested that view, ‘The Conference, considering that the advantages granted to ‘Considering that, however desirable the nationals of countries outside the Union international codification of the principles in Contracting States could induce them to governing the protection of the rights of join it. authors may be, it is to be feared that such a Mr. Lagerheim said that Swedish legislation project, in view of the difference of existing protected foreigners in matters of artistic prop- laws and conventions, may delay for a long erty (in so far as their works were in Sweden), time the conclusion of a general agreement; but not in matters of literary property. He ‘Considering further that the main objective believed that the Swedish Government would to be achieved, for the time being, is the estab- be willing to accept the broader principle pro- lishment of a Union whose subsequent devel- posed by the Federal Council. opment will bring the desired uniformity, Mr. Baetzmann pointed out that in that ‘Resolve that respect Norwegian law rested on the broadest ‘I. The foundations have to be laid of an inter- base, as it applied, in terms of its Article 45, ‘to national Convention to which the greatest possi- works of national authors or composers, and ble number of States may accede immediately; also to works published by Norwegian subjects ‘II. Resolutions have to be made concerning as publishers.’ The Norwegian Delegate there- the principles whose uniform introduction in fore fully endorsed the opinion expressed by laws and conventions is recommended to States.’ Mr. Lagerheim, and also by the Delegates of Mr. Reichardt asked, on behalf of the France, and expressed the desire that it be German Delegation, that the above draft incorporated in the future Convention. resolution be not voted upon at the present The President pointed out that the time, as his Delegation proposed to formulate Programme of the Federal Council went less
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far than Article 1 of the draft by the Literary Question 5 Association, as the right to enjoy national ‘As the term of protection is limited in a variety of treatment was confined to foreigners who were different ways by national legislation, would it resident in one of the countries of the Union or not be desirable and indeed urgent to settle this who had their work published there. question uniformly for the whole area covered by Following an exchange of observations the projected Union? Alternatively should one not between Mr. Lagerheim, Dr. Dambach, abide by the principle established by former liter- Mr. Ulbach and the President, it was decided ary conventions, according to which the protec- that the first question would not yet be voted tion reciprocally granted to the authors of the upon, but rather referred to the Committee for two contracting countries was guaranteed to examination. them only during the existence of those rights Question 2 in their countries of origin, while the dura- tion of their enjoyment in the other country ‘Should the matter of the formalities and might not exceed that specified by its law for conditions to be met by the author to secure national authors?’ protection under the Convention be governed by Counsellors Meyer and Reichardt laid stress the legislation of the country to which the author on the need to settle the matter of the term of belongs or by that of the country in which the pub- protection in a clear and simple manner. With lication of the work occurred (country of origin), the system of national treatment as proposed or again by that of the country in which protec- by the Federal Council, it could happen that a tion is claimed?’ (Article 2 of the Programme; work was protected longer in a foreign country Article 1 of the 1883 draft) than in the author’s country of origin, which After having decided that, with respect to did not seem fair and indeed could cause prac- unpublished works, it was the country to which tical difficulties. That drawback could be the author belonged that would be regarded as avoided either by imposing a uniform term of the country of origin, the Conference adopted protection for the whole Union, or by the the principle written into Article 2 of the adoption of the principle at present written Federal Council Programme. into the majority of conventions, to the effect Question 3 that the duration of protection could not ‘What reasons would there be for including exceed that granted to the author in his country arrangements of music in the enumeration of of origin. subject matter to be protected?’ (Article 4 of the Contrary to the above proposal, Mr. Louis Programme; Article 2 of the 1883 draft) Ulbach and H. E. Mr. Emmanuel Arago After explanations had been provided recommended the national treatment system by Mr. Reichardt and Mr. Lavollée, the as being simpler and as obviating, for the judge, Conference decided that arrangements of the knowledge of the laws of all foreign music would not be listed among the works to countries. be protected, but would rather be given a In support of the previous speakers, Federal special mention, for instance by means of an Councillor Ruchonnet pointed out that the insertion in connection with the definition of restriction sought by the German Delegates the term ‘adaptation.’ departed from a generally accepted principle of international law, namely the assimilation Question 4 of foreigners to nationals, which operated both to ‘Should the enumeration not include three- their advantage and to their disadvantage. dimensional works relating to geography, topogra- At the request of the German Delegation, phy, architecture or the natural sciences?’ (Article the entire question was referred to the 4 of the Programme; Article 2 of the 1883 draft) Committee. Dr. Dambach, Mr. d’Orelli and Mr. Lagerheim recommended an affirmative Question 6 reply to the above question. ‘In line with what has been accepted for This view was endorsed by the Conference. practically all literary conventions at present in
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force, would it not be appropriate to establish, for Mr. Lagerheim explained that the above the whole Union, the reciprocal right: question was of the utmost importance to ‘(a) To reproduce, without the author’s consent, for Scandinavian countries, and that the answer to scientific or teaching purposes, excerpts or it could be a decisive factor in their participa- whole sections of a work, subject to certain tion in the Union. Sweden, which at present conditions? allowed foreigners only very restricted protec- ‘(b) To publish, under certain conditions, tion against translation, would perhaps be chrestomathies consisting of fragments of willing to favour them somewhat more; in no works by various authors, without the lat- event, however, could it allow the exclusive ter’s consent? right of translation to be protected for the same ‘(c) To reproduce, in the original or in duration as the original work. In order that translation, articles excerpted from newspa- agreement might be reached, he proposed that pers or periodical journals, with the excep- the minimum term of protection that States tion of serialized novels and articles on members of the Union had to grant in respect science or art? of the right of translation be specified. Those Taking due account of existing conventions, States that wished to go further, or were already Mr. Louis Ulbach was not absolutely opposed bound by conventions providing for more to the reproduction of the works mentioned in extensive protection, would retain their free- the above question being authorized within dom of action. certain limits; he did, however, ask for authors Mr. Reichardt believed that the German to be given a glimpse, in the future, of protection Government could support complete assimila- for literary masterpieces or works of high moral tion of the right of translation to copyright, but value that was as extensive as for those that only on the condition that all other countries belonged to light literature. also supported it. In any event the German Mr. Reichardt pointed out that it was not in Delegation asked for authorized translation to Germany’s own interest that the Delegation of be protected for at least ten years. that country had proposed the restriction on Mr. Lavollée was pleased that the Delegate copyright, as its legislation and the conventions of Germany should be so favourably disposed that it had entered into allowed journalists and towards a matter that the French Government professors to draw on all works for the purposes set great store by, and hoped that his of teaching. declaration might induce the other countries Dr. Janvier asked for the removal from para- to adopt in turn the assimilation that had graph (c) of the words ‘and articles on science or long been an established feature of French art,’ giving as the reason for his proposal the legislation. public interest that immediate reproduction Federal Councillor Ruchonnet said that of such articles might have under certain Switzerland would endorse the assimilation. circumstances. Mr. Baetzmann, while confirming the infor- H. E. Mr. Emmanuel Arago insisted on a mation given by Mr. Lagerheim on the absence, precise definition of the conditions to which in Norwegian legislation, of any guarantees the right of reproduction had to be subject. concerning the right of translation, pointed On a proposal by Mr. Lagerheim and out that it could nevertheless be hoped that the Mr. Reichardt, the Conference referred the gap would be filled in Norway. The Norwegian whole of Question 6 to the Committee for Government had not, in its instructions to examination. him, committed its Delegate on this matter, and therefore considered the question open. Question 7 The speaker hoped that it would be settled in ‘Should the duration of the exclusive right of trans- the not too distant future, and in a way that lation be equal to that of the author’s rights in the would be conducive to Norway’s membership original work? If not, should not that duration be of the projected Union. fixed uniformly for the whole Union?’ (Article 7 of At the request of the French Delegation, the the Programme; Article 5 of the 1883 draft) vote on Question 7 was adjourned.
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The next meeting was to take place on the settling the conditions governing the exclusive following day, Wednesday, at 10 a.m. right of translation uniformly for all the coun- The agenda called for the continuation of tries of the Union; he therefore accorded only a the discussion on the questionnaire proposed contingent value to the question, which more- by the German Delegation. over he proposed should be referred to the The meeting rose at 1 p.m. Committee. Mr. Lagerheim supported that proposal, IN THE NAME OF THE but, having misgivings regarding the principle CONFERENCE: itself, he asked that the question remain as it stood. NUMA DROZ The proposal was adopted.
President Question 9 ‘Does not the application of the same principle Charles Soldan Bernard Frey (8) to the conditions to be met for the safeguarding of protection against unlawful Secretaries performance of musical, dramatic or dramatico- musical works result, in view of the difference of the legislation concerned, in the necessity of those Minutes conditions being regulated uniformly for the of the whole Union?’ After an exchange of explanations between Third Meeting Mr. Lagerheim and Mr. Reichardt, the of the question was referred to the Committee for examination. Conference for the Question 10 Protection of Authors’ Rights ‘In view of the difficulty of defining the term “adaptation” precisely and unambiguously, September 10, 1884 should not the courts be preferably given exclusive competence to declare the reproductions con- Presided over by Federal Councillor Numa cerned to be infringements, or not, as the case may Droz, President be?’ (Article 10 of the Programme; No. 3 of the draft Final Protocol; Article 7(2) of the 1883 The meeting opened at 10.15 a.m. draft) The following were present: the delegates Mr. Reichardt pointed out that it was very who had attended the previous meeting. difficult to define the word ‘adaptation’ The agenda called for the continuation of precisely, as provided in the Final Protocol of the discussion on the questionnaire proposed the Federal Council draft, which had borrowed by the German Delegation. it from the draft by the International Literary Association. Question 8 Mr. Ulbach believed that the term could be ‘With regard to the conditions to be met for the defined. Adaptation was the arrangement or exclusive right of translation to be safeguarded, disarrangement of the original work with a should they not be expressly made subject to the view to suiting it to the tastes or propensities of legislation of the country in which the original another public; it was a special, personal work appeared or, in the case of an unpublished arrangement, which took the substance of the work, to the legislation of the country to which the work without taking its form. Certainly there author belongs?’ would always be different shades of meaning, Counsellor Reichardt was convinced that which the courts would be required to evaluate; the discussion would prove the necessity of definition was possible, however.
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Dr. Dambach contested the above view, and difficulty in distinguishing an infringement mentioned that in recent months a German from a new work. committee of experts had recognized the Mr. Reichardt, H. E. Mr. Emmanuel Arago impossibility of defining the term concerned. and Mr. Ulbach took the floor again, after Either adaptation was a disguised infringe- which the Conference decided to refer the ment—and in that case it was punished as question to the Committee, with a request to such—or the changes made to the original the advocates of introduction of the word work were so great that in fact a new work was ‘adaptation’ that they present it with precise involved, which itself was entitled to protec- definitions. tion. The assessment of the question had in each specific case to be left to the courts, which Question 11 so far had had no difficulty in settling them. ‘The question whether or not arrangements to be H. E. Mr. Emmanuel Arago said that it was made separately between member countries of the not a question of giving a categorical and pre- Union would contravene the provisions of the cise definition of the word ‘adaptation,’ but projected Convention gives cause for considerable rather of adding to it an indication that enabled misgivings. In order to dispel those misgivings in it to be more readily understood and conveyed advance, would it not be better to reserve for the legislator’s concept to the judge, by means the Contracting Parties the right to enter into spe- of the addition for instance of terms such cial agreements, in so far as those agreements con- as: imitation, modification, arrangement, ferred on authors or on their lawful representatives appropriation based on the original work. rights that were more extensive than those Dr. Meyer supported the proposals of the granted by the Union, concerning the subject German Delegation, mentioning especially matter for protection, the duration of protec- the difficulties that the system advocated by the tion or the conditions to be met?’ (Article 12 of previous speaker would present in connection the Programme; Article 9 of the 1883 draft) with musical works. On behalf of the German Delegation, Professor A. d’Orelli said that he was of the Dr. Meyer proposed the adoption of the principle same opinion as the German Delegation, and expressed above, in replacement of Article 12 of moreover observed that all States wished to the Federal Council Programme, in view of the repress disguised plagiarism, which was even fact that Contracting States could not be deprived more reprehensible than actual infringement. of the right to grant, reciprocally, more extensive Replying to Dr. Steinbach, Consul General rights to authors than to those that would be guar- Lavollée explained that in the scientific anteed by the General Convention. domain too there could be appropriations in H. E. Mr. Emmanuel Arago said that the bad faith, which consequently had to be French Delegation agreed to what had just punished. He joined the other French been said. Delegates in demanding the retention and The President pointed out that special definition of the word ‘adaptation,’ as had been conventions could relate to matters that were done in the Franco-Spanish Convention. not provided for in the General Convention. Mr. Lagerheim subscribed to the view of the One should therefore speak not only of more German Delegation, unless there was some extensive rights, but also of other rights. way of giving a very restricted and very clear- In the sense indicated by the President, the cut definition of ‘adaptation.’ All legislation Conference replied affirmatively to Question 11. allowed the courts sufficient latitude to treat as infringement a reproduction that contained Question 12 even certain changes, where those changes were ‘Is it not in the light of the same considerations not essential. that the matter of the maintenance of conventions Dr. Dambach feared that the introduction at present in force should be resolved?’ in the law of a new legal concept such as (Transitional Provision of the Programme) adaptation might be liable to cause confusion Following an exchange of comments in the minds of judges, who so far had had no between Mr. Reichardt, Mr. Lavollée and the
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President on the scope of the transitional other countries. It is for that reason that Great provision proposed by the Federal Council, the Britain was recently unable to conclude a question was referred to the Committee for convention with Switzerland, where such examination. formalities do not exist. I am not questioning Mr. Reichardt said that, in the opinion of the subject; I merely wish to give an account of the German Delegation, the decision to be the present state of English law.’ taken on Questions 11 and 12 was contingent The Conference decided to refer Question on the one that would be taken on Question 6. 14 to the Committee in line with the wish expressed by the German Delegation. Question 13 As the discussion of the questionnaire ‘Should it not be specified, subject to the usual proposed by the German Delegation ended at reservations and conditions in favour of acquired that point, the President asked the German rights, that the projected Convention will be Delegates whether they were able to submit to retroactive?’ (Article 11 of the Programme; the Conference the draft resolution announced Article 8 of the 1883 draft) at the first meeting, which concerned the Mr. Reichardt explained that by acquired international codification of the provisions rights he meant those that related to copies governing copyright. of works, and also objects specially intended Mr. Reichardt announced that the draft for reproduction that were completed or in would be presented at the time of the the process of being completed on the discussion of Article 14 of the Programme. entry into force of the Convention, but that, Proceeding to another matter, Mr. Reichardt apart from that, the Convention should be asked the Conference whether it was under- retroactive. stood, as he gathered it was, that admission to Question 13 was referred to the Committee. the Union would be granted only to those States whose legislation protected copyright. Question 14 The Conference declared its agreement with ‘As the formality of registration or deposit is not the above view. required by the legislation of all the Contracting The general discussion provided for in Rule States, would it not be appropriate to include a 2 of the Rules of Procedure was closed. The clause in the Convention exempting the persons Conference would proceed with the discussion concerned, in the event of judicial dispute, from of the Programme proposed by the Federal providing formal proof of their copyright?’ Council as soon as it had been considered by Dr. Dambach said that German law had the Committee, in accordance with the removed the formality of registration and provisions of the Rule mentioned. replaced it with a set of legal presumptions, the The Conference was to meet on the following effect of which was to give the author greater day, Thursday, at 9.30 a.m., to approve the latitude for the assertion of his rights. A num- minutes of the previous two meetings; after ber of conventions had established the same that the Committee would begin its work. principle, and it would certainly be a great step The meeting rose at noon. forward if it were written into the General Convention. IN THE NAME OF THE Mr. Lavollée said that the French Delegation CONFERENCE: agreed with the German on that point. H.E. Mr. F.O. Adams made the following statement: NUMA DROZ ‘According to present English law, works President have to be duly registered in the United Kingdom, and copies of the works so registered have to be Charles Soldan Bernard Frey deposited with the British Museum. For trans- lations, formalities also have to be complied Secretaries with that are not required by the legislation of
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Minutes Conference for the of the Protection of Authors’ Rights Fourth Meeting September 17, 1884 of the Presided over by Federal Councillor Numa Conference for the Droz, President Protection of Authors’ Rights The meeting opened at 4.10 p.m. The following were present: the delegates September 11, 1884 who had attended the previous meeting, with in addition Dr. R. Thurmann, former Rector of Presided over by Federal Councillor Numa Droz, President the National Institute of Costa Rica and Delegate of the latter country. The President welcomed him on behalf of the Conference. The meeting opened at 9.30 a.m. The minutes of the fourth meeting, which The following were present: the delegates had been handed to the delegates in draft form, who had attended the previous meeting. were adopted. The minutes of the second and third The President made the following commu- meetings, which had been submitted to the nications to the Conference: delegates in draft form, were adopted with a number of amendments requested by (1) Mr. Auguste Meulemans, Legation Mr. Reichardt and Mr. Lagerheim. Secretary and Consul General of Paraguay in The President arranged for the distribution Paris, had informed the President of the to the participants in the Conference of a Conference by telegraph that he had been del- French translation of the Swedish law on liter- egated to that Conference by the Government ary and artistic property, which Mr. Lagerheim he represented, and had asked to be entered on had handed to him for that purpose, and the list of delegates. addressed the assembly’s thanks to the Delegate (2) It had transpired from a note from of Sweden. the Ministry of Foreign Affairs of the Kingdom The meeting rose at 9.45 a.m. of Italy that circumstances had prevented the Government of that country from send- ing a delegation, as it had announced it would. IN THE NAME OF THE It nevertheless reserved the right to accede to CONFERENCE: the International Union after consideration of the results of the Conference, and requested NUMA DROZ that the latter be communicated to it. President (3) The Minister for Foreign Affairs of Brazil had telegraphed that his Government could not take part in the Conference, and that he CHARLES SOLDAN BERNARD FREY would await communication of the resolutions Secretaries taken by it before deciding on accession. (4) The Government of the Argentine Republic had announced that lack of time had Minutes prevented it from sending a representative to the Conference. It nevertheless asked to be of the informed of the resolutions that would be Fifth Meeting taken during the proceedings, in order that it might accede if it considered such a step of the appropriate.
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(5) The Spanish Government had not been The President presented the report of the able to give instructions to a delegation. Committee on the basis of the notes provided (6) The Government of Portugal had not by the Secretariat. thought it necessary to be represented at the Conference; before taking a decision, it was I. Draft Convention Concerning awaiting the assessments made by governments more directly concerned with the question. the Creation of a General Union (7) Commendatore Felix Carotti of Florence for the Protection of Authors’ and the International Association of Lawyers Rights in Vienna had sent letters to the Conference According to the proposals of the Committee, expressing their support for the work that it the title was adopted as transcribed above. The was carrying out. preamble was likewise accepted in the follow- The President announced that, in accordance ing form proposed by the Commission: with Rule 2 of the Rules of Procedure, the Federal Council Programme had been consid- (Enumeration of the High Contracting ered by a Committee on which each State had Parties) been represented...... For examination of the subject in greater Being equally moved by the desire to depth, two Sub-Committees had been protect effectively and as uniformly as possible appointed with the following membership, the rights of authors in literary and artistic given in the alphabetical order of the French works, names of States: Have resolved to conclude a Convention to that end, and have appointed the following as (i) Drafting Committee: their Plenipotentiaries: Counsellor REICHARDT ...... Counsellor STEINBACH Who, after having exchanged their full Mr. LOUIS ULBACH powers, found to be in good form, have agreed Mr. LAGERHEIM on the following articles: Federal Councillor Numa Droz (ii) Special Committee to consider the Article 1 Constitution of the Union organization and functions of the (Article 1 of the Programme) projected International Bureau: Dr. DAMBACH In its Programme, the Federal Council had Count G. ERREMBAULT DE DUDZEELE proposed the following: Mr. René LAVOLLÉE ‘The Contracting States (listed) are consti- Mr. BAETZMANN tuted into a Union for the protection of Professor D’ORELLI the rights of authors in their literary and artistic works.’ The President announced that the Plenary In a counter-proposal, the German Committee had held six meetings, and that the Delegation had proposed the following text: result of its discussions consisted of the follow- ‘The Contracting Countries are constituted ing five documents, which he presented to the into a Union for the protection of the Conference: copyright in literary and artistic works.’ (i) Draft Convention Concerning the With regard to the title of the projected Creation of a General Union for the Convention, it had been observed within the Protection of Authors’ Rights; Committee that it would not be accurate to (ii) Additional Article to the above speak of ‘the rights of authors,’ as it was in no Convention; way a question of regulating all the rights (iii) Final Protocol; accruing to authors in relation to their literary (iv) Recommended principles for subsequent and artistic works, for instance in their relations unification; with the publisher, but merely of protecting a (v) Final minutes of the Conference. very special right, which in certain countries
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was looked upon as a real right of ownership, form or published in one of those countries, whereas elsewhere it was regarded only as a such advantages as the laws concerned do now personal right, albeit of a particular kind or will hereafter grant to nationals. (‘Urheberrecht’). Moreover, as the French ‘The enjoyment of the above rights shall be expression ‘droit d’auteur’ was restricted by subject to compliance with the conditions of everyday language to the collection of the fee form and substance prescribed by the legislation payable to the author, it seemed preferable to of the country of origin of the work or, in the use a term that did not lend itself to misinter- case of a manuscript or unpublished work, by pretation. The use of the word ‘authors’ rights’ the legislation of the country to which the had been intended to avert any misunderstand- author belongs.’ ing regarding the purpose of the Union. The Committee had agreed with the The expression ‘Contracting Countries’ had Delegates of Germany that the words ‘subjects seemed preferable to ‘Contracting States,’ in or citizens’ did not correspond with perfect view of the diversity of the national constitutions accuracy to the expressions used by the legisla- of the Contracting Parties, and the terminology tion of the various Contracting Countries. The adopted in that respect by comparable conven- term ‘nationals,’ on which it had decided, indi- tions. For the same reasons it had also been cated clearly that the Convention was intended considered unnecessary to list the High to protect all those authors who were natives of Contracting Parties in Article 1. one of the countries of the Union. Consequently, the Committee proposed The addition of the words ‘whether in man- that the provision be worded as follows: uscript or unpublished form’ was approved as a means of deleting the Article 5 proposed by the Article 1 Federal Council. The Contracting Countries are constituted By making the protection of a work subject into a Union for the protection of authors’ to the condition that it be published in one of rights in literary and artistic works. the countries forming part of the Union, the The above text was adopted without wording of the German Delegation made a discussion. restriction on the system proposed by the Article 2 Federal Council. The Committee considered that such a restriction could be accepted, the (Article 2 of the Programme) word ‘publish’ having moreover to be under- Protection The Federal Council Programme had proposed stood in the sense attributed to it hitherto by granted to authors; the following: legislation and case law. duration of that ‘The subjects or citizens of any of the A question that arises in connection with the protection and Contracting States shall enjoy in all the other conditions above Article is whether national treatment has to which it is States of the Union, with respect to the protection to be applied to foreign authors purely and subject of the rights of authors in their literary and simply, or whether on the contrary one should artistic works, such advantages as the laws establish the principle written into, present concerned do now or may hereafter grant to literary conventions, according to which ‘the their own nationals. Consequently they shall protection reciprocally accorded to the authors of have the same protection as those nationals and contracting countries shall be guaranteed to them the same legal remedies against any violation of only during the existence of their rights in their their rights, subject to compliance with the countries of origin, and the duration of the formalities and conditions prescribed by law in enjoyment of rights in the other country may not the country of origin of the work.’ exceed that laid down by the law for national The following wording had been proposed authors.’ by the German Delegation: From the point of view of drafting, the ‘Authors who are nationals of one of the Committee had first considered that the sec- Contracting Countries shall enjoy in all the ond part of the above clause was in any case other countries of the Union, in respect of their unnecessary, as it was implicit in the national works, whether in manuscript or unpublished treatment principle written into the
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Convention that foreign authors could not be However, those advantages shall be treated more favourably than nationals. As to reciprocally guaranteed to them only during substance, the Committee had acknowledged the existence of their rights in their countries without hesitation that the setting of a uniform of origin. term of protection for the whole area of the The enjoyment of the above advantages Union would be a considerable step forward; it shall be subject to the accomplishment of the had therefore expressed the wish that the vari- formalities and conditions prescribed by the ous States might concentrate their efforts in legislation of the country of origin of the work that direction, and they might at least agree to or, in the case of a manuscript or unpublished protect the work throughout the author’s life- work, by the legislation of the country to time and for a certain time after his death. which the author belongs. However, in view of the present diversity of all On the subject of this Article Mr. Baetzmann the various specific laws on that point, the made the following statement: Committee had had to disregard the solution ‘Now that the result of the work of our concerned and pronounce on whether national distinguished Committee has become a draft treatment should be applied purely and simply that encompasses the subject area in its near to foreign authors or whether, on the contrary, entirety, and at the same time very explicitly it should benefit them only during the exis- defines the minimum of protection that has to tence of their rights in their countries of origin. be granted in each of the countries of the The latter alternative, proposed by the German Union, I consider myself able to subscribe to Delegation, had originally been neither the dual principle of national treatment and accepted nor rejected, the votes having been country of origin treatment. At the outset there equally divided. Later it had been adopted by was reason to fear that the clause on country of six votes to three. The Committee had more- origin treatment might become too great a over noted that, whatever the reply to the ques- restriction on protection. As a result of the tion might be, there was no escaping the changes undergone by the draft that will be drawbacks caused by a work having fallen into submitted to Governments for consideration, the public domain in one country while it was this risk seems to me to have disappeared, and I still protected in another. am therefore able today to vote for the second With regard to the conditions required for paragraph of Article 2.’ the enjoyment of protection, the Committee Mr. Ulbach said the following: ‘Gentlemen, had given preference to the wording proposed you have rejected the wording that to us by the German Delegation; it had nevertheless seemed the simplest and which was at the same substituted for the words ‘conditions of form time, on the part of the French Delegation, and substance’ the expression ‘formalities and the expression of a disinterested sentiment, as conditions,’ which had been proposed by the we were offering foreign authors more than we Federal Council, and which had seemed to it to ourselves receive from their countries. I have no encompass all the conditions and procedures intention to make you reverse the successive specified in the country of origin for authors’ votes of the Drafting Committee and the rights to be secured. Plenary Committee. I do, however, wish to In sum, the Committee proposed that have this misprision of our generosity recorded Article 2 should have the following form: in the minutes. ‘It seemed to us quite simple for an author to Article 2 accept the conditions of the country that Authors who are nationals of one of the extended its hospitality to him. It was a simple Contracting Countries shall enjoy in the rule for the courts in the event of dispute; it was other countries of the Union, for their works, the best way of bringing about this equality, whether in manuscript or unpublished form this uniformity in the duration of rights, which or published in one of those countries, the you consider fair, and which we consider advantages which the laws concerned do now indispensable. The States of the Union would or may hereafter grant to nationals. have been in all the more of a hurry to align
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themselves on France by setting at 50 years, Council draft, the second sentence of Article 2 like France, this protection after the author’s started: ‘Consequently, they shall have the lifetime. same protection as those nationals and the ‘You have rejected this proposal with the same legal remedies against any violation of mere expression of a wish that makes one their rights.’ That provision, which was to be hope for its realization. We thank you for found in practically all conventions at present that wish; we regret that, having found it neces- in force, was indeed implicit in the general sary, you did not go further and make it principle written into the first paragraph of the unnecessary.’ proposed Article; By formulating it expressly Mr. Lagerheim recalled that he had set out one might perhaps have prevented any uncer- within the Committee the reasons which tainty or hesitation in the mind of the authori- according to him militated for the insertion in ties responsible for implementing the the Convention of the requirement contained Convention. In any event, it had to be made in the second paragraph. Such a requirement clear that the change of form in no way altered would be capable of obviating a large number the substance. of contentious cases that would inevitably The President noted that the Conference result from national treatment pure and agreed on the above point. simple. However, he had had to demand the As no opposition had been expressed, Article 2 insertion of this clause also on the ground that was adopted as proposed by the Committee. Sweden would not have been able to join the Article 3 Union if by doing so it had been obliged to (Article 3 of the Programme) Protection protect works which, in their country of origin, accorded to the had fallen into the public domain. For him According to the Federal Council Programme: publishers of therefore the adoption of the paragraph was an ‘The subjects or citizens of States not form- works whose authors do not absolute condition. ing part of the Union who are domiciled, or belong to a Dr. Meyer said the following: ‘It is merely a have their works published, on the territory of country of the question of noting that the wording proposed one of the States of the Union shall be treated in Union by the German Delegation, ‘conditions of form the same way as the subjects or citizens of and subastance,” has been replaced by the words Contracting States.’ “formalities and conditions,” and that the word Originally, the German Delegation had pro- “formalities,” being taken as a synonym of the posed the outright deletion of this Article, on term “conditions of form,” included, for the ground that too-extensive facilities granted instance, registration, deposit, etc.; whereas the to foreigners would lessen the interest of acces- expression “conditions,” being in our view syn- sion to the Union for non-Contracting States. onymous with “conditions of substance,” However, recognizing that the risk did not exist includes, for instance, the completion of a in relation to works whose publishers belonged translation within the prescribed period. Thus to a country of the Union, the German the words “formalities and conditions” cover all Delegation had acknowledged in the course of that has to be observed for the author’s rights in the subsequent discussion that those publishers relation to his work to come into being could be granted a direct right in respect of (“Voraussetzungen” in German), whereas the works whose author was not a national of a effects and consequences of protection Contracting Country. That principle had been (“Wirkungen” in German), notably with respect adopted by the Committee, which, taking to the extent of protection, have to remain sub- account of a drafting amendment proposed by ject to the principle of treatment on the same the French Delegation, had reinstated Article 3 footing as nationals.’ in the following form: The President noted that the Conference agreed with Dr. Meyer on the scope of the Article 3 words ‘formalities and conditions.’ The provisions of Article 2 shall apply also to Mr. Lavollée drew attention to the deletion the publishers of literary or artistic works of the words with which, in the Federal published in one of the countries of the
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Union, whose author comes from a country painting, sculpture and engraving, lithographs, that does not belong to it. maps, plans, scientific diagrams, and in general On the subject of the above article, any literary, scientific and artistic work that Mr. Lavollée made the following statement: may be published by any system of printing or ‘The French Delegates were entrusted with reproduction.’ supporting the original wording submitted by The German Delegation had proposed the the Federal Council. In a treaty establishing an following: international union, it would have seemed ‘The expression “literary and artistic work” preferable to retain a general formula recogniz- shall include books, pamphlets or any other ing the personal rights of authors rather than writings; dramatic or dramatico-musical the restrictive provision that the specific works, musical compositions with or without demands of German legislation caused to pre- words; works of drawing, painting, sculpture vail in the Franco-German Convention of and engraving; lithographs, illustrations, April 19, 1883. maps; plans, sketches and three-dimensional ‘In any event, the French Delegates would works relative to geography, topography, archi- have wished to see the benefit of Article 3 tecture or the natural sciences, and in general extended to the works of authors resident on any production whatsoever in the literary, the territory of the Union, even where those scientific or artistic domain.’ works were published outside that territory. In accordance with what had been decided One example will suffice to justify our wish: a at the second meeting of the Conference, the number of the works of Rossini, an Italian sub- Committee had deleted the mention of ject resident in France, have been performed ‘arrangements of music,’ as that point was to be for the first time in Italy. Had Italy not been a dealt with expressly or by implication in con- part of the Union, would those works of nection with the provisions concerning Rossini have had to be deprived of protection infringement or adaptation. in France when, later, they were performed It had moreover agreed with the German there? The fact of asking such a question seems Delegation regarding the special mention of to me to provide the answer. ‘illustrations,’ and also regarding the precise ‘It should be pointed out moreover that the indication of what was covered by plans, expression “domiciled” denotes not just resi- sketches and three-dimensional works. On the dence, either temporary or secondary, but a other hand it had substituted the words ‘in gen- principal and permanent establishment.’ eral ’ for the adjective ‘natural ’ qualifying Apart from his observation on the general ‘sciences,’ which would have had the effect of scope of the Article, Mr. Lavollée expressed the restricting protection. view that, in the wording proposed by the With regard to the phrase that ended the Committee, the word ‘publisher’ should be wording proposed by the German Delegation, it understood in the broadest sense, so that it had been pointed out that it was not the purpose could, for instance, apply to the organizer of of the Convention to protect productions dramatic performances. belonging to the scientific field that were not The Article was adopted in the form given capable of being reproduced. In order to make above. that point clearer, it had been considered appro- priate to complete the Article, using the drafting Article 4 that ended it in the Federal Council proposal, (Article 4 of the Programme) with the word ‘mode’ substituted for ‘system.’ The Federal Council had proposed the following Finally, as the French Delegation had Definition of the expression wording: insisted on photographs being added to the enu- ‘literary and ‘The expression “literary or artistic works” meration of the works to be protected, the artistic works’ shall include books, pamphlets or any other German Delegates had explained that their writings; dramatic or dramatico-musical works, legislation in its present state did not allow musical compositions with or without words them to accept the mention of photographs in and arrangements of music; works of drawing, the projected Convention. However, recognizing
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that the protection of original photographs was Delegation had proposed that Article 5 was appropriate, the Committee had decided to unnecessary and should be deleted. express the wish that it be introduced in the The Committee had agreed to that deletion, future. which was approved by the Conference. As a result of the above decisions, the Article 5 Committee had given Article 4 the following wording: (Article 6 of the Programme) The Federal Council proposal was as follows: Article 4 The lawful ‘The lawful agents or representatives of agents or The expression ‘literary or artistic works’ shall authors shall in every respect enjoy the same respresentatives include books, pamphlets and all other writ- rights as are granted by this Convention to the of authors ings; dramatic or dramatico-musical works, authors themselves.’ musical compositions with or without words; In view of the direct right of protection that works of drawing, painting, sculpture and Article 3 granted in certain cases to the pub- engraving; lithographs, illustrations, maps; lisher, the Committee had decided to complete plans, sketches and plastic works relative to the proposed wording with the additional geography, topography, architecture or science mention of publishers. in general; in fact, every production whatso- Consequently, Article 5 had been drafted ever in the literary, scientific or artistic as follows: domain which can be published by any mode of printing or reproduction. Article 5 Mr. Ulbach said the following: ‘It is under- The lawful agents or representatives of stood that the words “by any mode of printing or authors, or, in the case provided for in Article reproduction” do not exclude photography 3, those of publishers, shall in every respect when it is used for the purposes of art or sci- enjoy the same rights as are granted by this ence, or when it is used to illustrate an instruc- Convention to the authors or publishers tive work on travel, ethnography, natural themselves. history or archaeology. It is understood that, Article 5 was adopted in this form. while you may not wish to protect ordinary Article 6 commercial photography at this stage, you will consider an artistic photograph that repro- (Article 7 of the Programme) duces a masterpiece as being a reflection of that The Federal Council wording was as follows: masterpiece, and worthy of respect, albeit not ‘Authors who are nationals of one of the in the same capacity but at least by virtue of a Contracting States shall, in all the other States Exclusive right sort of remote relationship.’ of the Union, enjoy the exclusive right of trans- of translation After an exchange of comments between lation throughout the duration of their rights Mr. Lavollée and the President it was under- in respect of their original works [with the stood that, while the enumeration in the above possible addition of ‘if they have availed Article did not mention photographs, they themselves of that right within a period of ten nevertheless qualified for protection when they years’]. were the authorized reproduction of a work ‘That right shall include the rights of publi- that was itself protected. cation or performance.’ Article 4 was adopted. The following proposal had been presented by the German Delegation: (Article 5 of the Programme) ‘Authors who are nationals of one of the The Federal Council had proposed the following countries of the Union shall, in all the other provision: countries of the Union, enjoy the exclusive ‘The rights of authors shall also apply to right of translation in relation to their works manuscript or unpublished works.’ during ten years following the publication of In view of the mention of manuscript or the translation of their work authorized by unpublished works in Article 2, the German them.
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‘The translation must be published in one of rights in those works, the publication of an the countries of the Union. unauthorized translation being in all respects ‘In order to qualify for the application of this assimilated to the unlawful reprinting of the provision, the said authorized translation must original work. appear in its entirety within three years follow- ‘The translators of ancient works or modern ing the publication of the original work. works that have fallen into the public domain ‘For works published in instalments, the shall, with respect to their translations, enjoy three-year period specified in the foregoing the right of ownership and the guarantees paragraph shall be counted only as from the deriving therefrom; they may not, however, publication of the last instalment of the object to the same works being translated by original work. other writers. ‘Where the translation of a work appears in ‘The authors of dramatic or dramatico- instalments, the ten-year term provided for in musical works shall enjoy reciprocally the same the first paragraph shall also be counted only as rights concerning the translation or the perfor- from the appearance of the last such instal- mance of translations of their works.’ ment. With respect to substance, the various ‘It is understood that, for works composed wordings proposed diverged on the question of several volumes published at intervals, and whether or not the right of translation had to also for bulletins or collections published by lit- be assimilated to the exclusive right of repro- erary or scientific societies, or by private per- duction with respect to its duration. Such sons, each volume, bulletin or collection shall assimilation had been emphatically, demanded be considered a separate work with respect to by the International Literary Association; it the terms of ten years and three years.’ had been established by case law in France, and For his part, Mr. Lagerheim had made the elsewhere by statute law, albeit with certain following proposal: restrictions regarding the period within which ‘Authors who are nationals of one of the the authorized translation had to have countries of the Union shall enjoy in each of appeared. It had been argued in favour of the other countries of the Union the exclusive outright assimilation that without it the right of translation in relation to their works for protection of copyright would be illusory; ten years following the publication of the orig- moreover it was prejudiced to believe that the inal work, provided however: country that did not protect foreigners against ‘(i) that a complete authorized translation translation was thereby doing a service to its appears within three years following the nationals: it was indeed contrary to the nature publication of the original work; of things for an author to refuse to authorize ‘(ii) that the said translation is published in the translation of his work, but he did have an one of the countries of the Union. unquestionable interest in that translation ‘For works published in instalments, etc. being a good one, and that was what could not (see the German draft). be secured otherwise than by protection. Those ‘Where the translation, etc. (ibidem). countries that had abandoned ancient preju- ‘It is understood that, etc. (ibidem). dices to adopt the system of protection had rec- ‘It is understood that the exclusive right of ognized that, far from being harmful to translation shall extend only to the language or national authors, on the contrary it favoured languages in which an authorized translation has them strongly. appeared.’ Acknowledging the validity of those argu- Finally, the French Delegation had proposed ments, the Committee had not hesitated to for- that the Article be worded as follows: mulate the wish that the right of translation, ‘Authors who are nationals of one of the with respect to its duration, be assimilated to Contracting Countries shall, in all the other the exclusive right of reproduction. It had countries of the Union, enjoy the exclusive noted however that, in view of the great diversity right to make or authorize the translation of of specific legislation in that respect, it would their works throughout the duration of their hardly be possible to write the principle of
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assimilation into a general convention at the as from the appearance of the last such present time; there were moreover all the fewer instalment. drawbacks to the introduction of lesser protec- In the case of works composed of several tion in the area concerned since, for the time volumes published at intervals, and also for being, it was merely a question of setting a min- bulletins or collections published by literary imum, and since the greater advantages pro- or scientific societies, or by private persons, vided for in specific conventions in that respect each volume, bulletin or collection shall, with had to continue to accord reciprocal benefit to regard to the periods of ten and three years, be authors belonging to the Contracting considered a separate work. Countries. It is understood that the exclusive right of Those considerations had led the translation shall not extend beyond the lan- Committee to give preference, with regard to guage or languages in which an authorized the term of protection, to the proposal by translation has appeared. the German Delegation, especially since Mr. Lavollée felt bound, with regard to the Mr. Lagerheim had not pressed the proposal matter of translation, to refer to the considera- that he himself had made in opposition to it. tions that he had put forward at the second As for the actual drafting of the Article, the meeting of the Conference. The observations Committee had considered, like Mr. that had been exchanged within the Lagerheim, that the exclusive right of transla- Committee on that subject, which had tion should not extend beyond the language or brought about the adoption of the compromise languages in which the authorized translation formula at present being discussed, had not had appeared. altered his opinion on that point. He remained It had also agreed, in accordance with a convinced that the Conference could have widely accepted practice, that the expression voted for the wording proposed in Article 7 of ‘exclusive right of translation’ included not only the Federal Council Programme, which the author’s right to translate his work himself, provided for full assimilation of the right of but also his right to authorize its translation. translation to that of reproduction. For the various reasons set forth above, the That principle, which France had been the Committee had adopted Article 6 in the first to establish in its case law, was no longer following wording: seriously contradicted anywhere in the world of letters, as demonstrated by the unanimous vote Article 6 taken the previous year, also in Berne, by the Authors who are nationals of one of the International Literary Association. It had been countries of the Union shall enjoy, in all the given diplomatic consecration in a number of other countries of the Union, the exclusive conventions: it was sufficient to mention those right of translation in relation to their works that France had signed in the last four years, for ten years after the publication, in one of namely with El Salvador (Convention of June the countries of the Union, of the translation 9, 1880, Article 5), with Spain (Convention of of their work authorized by them. June 16, 1880, Article 3) and with Belgium In order to enjoy the benefits of the above (interpretative declaration of January 4, 1882). provision, the complete authorized transla- Switzerland had that day declared, in its pro- tion must appear within three years following posal, its willingness to accept that same princi- the publication of the original work. ple, and at the second meeting of the For works published in instalments, the Conference the first Delegate of Germany had period of three years specified in the foregoing seen fit to express the opinion that the German paragraph shall be calculated only as from the Government might endorse full assimilation of publication of the last instalment of the the right of translation to copyright, provided original work. that all the other countries also did so. Where the translation of a work appears in The fact of that agreement between five of instalments, the ten-year term provided for in the States in which intellectual development the first paragraph shall also be counted only had made the most progress, and the formulation
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of the wish proposed by the Committee, were reproduction. They could not see any fair and certainly substantial results; it would, however, rational solution to the question of translation have been desirable, and seemingly possible, to outside that rule, which for them was a doctri- make fuller and more definite progress had the nal principle whose universal recognition was drafting presented by the Federal Council been being delayed solely by reservations deriving endorsed. Therefore, without absolutely reject- from the ancient institution of the right of ing the compromise Article that was proposed, escheat. Those reservations were moreover los- which in his opinion represented no more than ing ground daily; it was already permissible to a minimum, and without demanding a vote, predict their complete disappearance, and the outcome of which could be prejudiced by indeed that result might well have been the discussions of the Committee, Mr. Lavollée achieved very soon if the Conference had felt bound to abide by the point of view that the accepted the proposals of the Federal Council. French Government had expressly entrusted its In view of the fact that no agreement had Delegates with presenting at the Conference. been reached on that basis, the French In its opinion, the right of translation could not Delegates were not able to accept the proposed and should not be considered a dismember- wording otherwise than as a minimum, and ment of the right of reproduction, or a special that with express reservations as to the eventual form of the right of reproduction itself. Indeed decision of their Government. in international relations translation was Mr. Lagerheim wished to give a very suc- almost always the normal manner of reproduc- cinct recapitulation of the arguments that he tion. Consequently the objection based on had put forward within the Committee on this contrary provisions in various domestic laws important Article. The population of the had very little value in the case in point Scandinavian countries was small, but they had because, when translation was involved, it was an avid desire to learn, and a need to secure for almost solely relations with foreign countries themselves the literary productions of great that had to be regulated, and because therefore nations. In the past they had been able to do so the real domestic law was in fact international without hindrance, and it was only recently law. The fear had also been expressed that an that Sweden had sanctioned in a new law the author’s groundless resistance to the translation principle of limited protection against unau- of his work might be an obstacle to its dissemi- thorized translations. Mr. Lagerheim acknowl- nation, and thereby to the progress of civiliza- edged that the law was not a good one, and that tion. Concern for such an eventuality indicated in particular the term of protection of the very little knowledge of human nature, and in exclusive right of translation should be particular the nature of authors. Whether extended somewhat. He had therefore pro- inspired by lucrative considerations, by a desire posed within the Committee that the duration for fame or by devotion to a cause or to an idea, be limited to ten years, grace period included. the author would always be prone to accept, As that proposal had not been supported, he perhaps even too readily, any proposals that had accepted the present wording in a spirit of might be made to him regarding the translation compromise, but with a formal declaration of his work. The main thing was that he should that that was the maximum concession that not be cheated of the fruit of his work, and that Sweden could make on that point, and more- he should be able to ensure that his thoughts over with reservations regarding the view of his were not misrepresented on the pretext of Government, which he was in no way able to translation. In the latter respect his interest was commit. in line with that of the public, which needed to He asked in addition for it to be noted that be assured of the accuracy of the interpretation protection so limited became in practice very given to the original work. real protection. If an authorized translation On the various grounds set forth above, the existed, it would almost always take precedence French Delegates remained resolutely true, on over other translations, and it was almost only behalf of their Government, to the system of in the case where it was out of print and where full assimilation of translation to ordinary the publisher or the author did not concern
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themselves with having a new edition published Union the task of implementing more and that another translation would be made at all. more what I saw fit to mention as being a trend Due account had also to be taken, however, of of our time.’ the possibility of the authorized translation The proposal by the French Delegation, repro- being a bad one. In that case the public was duced above, was put to the vote. entitled not to be deprived forever of any There were three votes in favour of the pro- means of acquainting itself with the original posal, namely those of France, Haiti and work in the form that best reflected the Switzerland. thoughts of the author, and the honour of the There were six votes against it, namely the author himself could only benefit from free- votes of Germany, Austria, Hungary, Costa dom of translation granted after a certain Rica, Sweden and Norway. period of time. The Delegates of Belgium, the United Dr. Steinbach said the following in his own Kingdom and the Netherlands abstained. name and on behalf of Counsellor Zádor, his Thereafter the whole of Article 6 was put to counterpart from Hungary: ‘We have to vote the vote, and it was adopted as proposed by against Article 6 of the Convention, because the Committee by six countries (Germany, new Hungarian legislation on authors’ rights is Costa Rica, France, Sweden, Norway and in contradiction with that Article regarding the Switzerland) to three (Austria, Hungary formalities to be complied with for the acquisi- and Haiti). tion of the exclusive right of translation and as The Delegates of Belgium, Great Britain to the duration of that right.’ and the Netherlands abstained, Count de Mr. Reichardt spoke as follows: ‘In the face Dudzeele declaring that his abstention was due of the proposals made by the French to the fact that he had not received detailed Delegation, I take the liberty of adding to the instructions from his Government on the point considerations expressed by the President some concerned. of the reasons that guided the majority of the Article 7 Translations Committee. assimilated to ‘The Committee was unanimous in its (Article 8 of the Programme) original works recognition that the current trend was towards The Federal Council had proposed the following assimilation of the duration of the exclusive provision: right of translation to that of the rights in the ‘An authorized translation shall be protected original work. in the same way as the original work. ‘However, it was not to be overlooked that a ‘Where the translation is of a work that has number of countries still possessed provisions fallen into the public domain, the translator based on opposite principles, according to which may not object to the same work being the exclusive right concerned had a duration of translated by other writers.’ five years only; and also that other countries of On the subject of the above Article it had considerable literary importance had recently, been pointed out that the proposed wording and after very thorough research, extended the contained a loophole, in that it did not protect duration of that right from five to ten years; they the author against the reproduction that might had not done that without first having sur- be made in a country of the Union of an unau- mounted quite considerable difficulties. thorized translation of his work. ‘Now, it would be too great a leap, and Moreover, the Federal Council Programme indeed a potential salto mortale for the success did not distinguish between whether it was the of the projected Union, to attempt to establish work itself or the translation that had fallen the principle of assimilation at the outset. into the public domain. That was explained by ‘It was by placing itself at this vantage point the fact that the Programme provided for full that the Committee sought to progress towards assimilation of the right of translation to the the aim that we are all striving to attain, steer- right of reproduction. As the Committee had ing its proposal along the middle path, and pronounced against such assimilation, the leaving to the subsequent development of the Article had had to be completed in that respect.
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Consequently, the Committee had drafted it collections intended for schools of music; any as follows: insertion of such kind without the consent of the composer shall be considered an unlawful Article 7 reproduction.’ Translations are expressly assimilated to The inclusion of the above provision had original works. They shall therefore enjoy the been proposed by the German Delegation protection provided for in Articles 2 and 3 because there seemed to be a universal interest with respect to their unauthorized reproduction in certain borrowings from authors to be in countries of the Union. allowed, within reasonable limits, for educa- In the case of a work for which the right of tional purposes. The Committee had acknowl- translation is in the public domain, the edged the existence of that interest. It had translator may not object to the same work further considered it preferable to provide for being translated by other writers. the reproduction right concerned in the Article 7 was adopted in the above form. General Convention rather than leave it to spe- Mr. Lagerheim asked for the order of cial conventions and the domestic legislation of Articles 6 and 7 to be reversed, as in his opinion each country. Article 7 was a statement of a general principle, From the point of view of drafting, the whereas Article 6, like Article 8 onwards, words ‘whole passages,’ used in the first para- contained specific provisions concerning the graph, had been criticized as having too great a application of the principles on which the scope and as being capable of such broad inter- Convention was based. pretation that they might encroach seriously On an individual vote, the above drafting on the author’s legitimate rights. In reply to proposal was rejected by ten votes to four. that observation, it had been stated that the expression concerned was to be found in a Article 8 number of the conventions in force at present, (Article 8(a) as proposed by the and that it had been inserted with the avowed Lowful German Delegation) reproduction of intention that it should be given a restricted protected works The German Delegation had made the following meaning only. Once that explanation had in scientific or educational proposal, which referred to Question 6 of the removed the risk that the use of a general term works questionnaire proposed by it: might have caused, the Committee had raised ‘The publication in any of the countries of no objection to allowing the expression ‘com- the Union of excerpts or whole passages of a plete passages.’ work that has appeared for the first time in any In another context, attention had been other country of the Union shall be lawful, pro- drawn to the need to permit also, under the vided that the publication is specially designed same conditions, the reproduction of frag- and adapted for education, or has scientific ments of artistic works. The Committee had character. inserted a provision on those lines, and had ‘The reciprocal publication of chrestomath- worded the whole Article as follows, amending ies consisting of fragments of works by various the last paragraph slightly. authors shall also be lawful, as shall the insertion in a chrestomathy or in an original work Article 8 published in one of the countries of the Union The publication in any of the countries of the of the whole of a short writing published in Union of excerpts, fragments or whole another country of the Union. passages of a literary or artistic work that has ‘It is understood that the name of the author appeared for the first time in any other from whom, or of the source from which, the country of the Union shall be lawful, provided excerpts, passages, fragments or writings that the publication is specially designed referred to in the above two paragraphs have and adapted for education, or has scientific been borrowed shall always be mentioned. character. ‘The provisions of this Article shall not The reciprocal publication of chrestomathies apply to musical compositions inserted in consisting of fragments of works by various
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authors shall also be lawful, as shall the inser- deletion of Article 8, which introduces a tion in a chrestomathy or in an original work restriction on copyright, would make all published in one of the countries of the Union provisions comparable to Article 8 contained of the whole of a short writing published in in existing conventions void by virtue of the another country of the Union. Additional Article. It is understood that the name of the author ‘I therefore hope, that Mr. Lavollée’s intention from whom, or of the source from which, the is merely to state a way of thinking, and not to excerpts, passages, fragments or writings bring about a vote on Article 8 of the draft, the referred to in the above two paragraphs have rejection of which would very probably place been borrowed shall always be mentioned. the German Government in the position of The insertion of musical compositions in having to renounce the projected Union collections intended for schools of music completely.’ shall be considered unlawful reproduction, Mr. Ulbach spoke as follows: ‘Gentlemen, however. allow me to revert one last time to an Article Mr. Lagerheim expressed very special that is very important to me, and to defend reservations, based on the Swedish legislation once again the rights of the moral writer, who is on literary property, on the subject of the less well protected against borrowings and provisions written into the above Article. plagiarism than the casual and immoral writer. Mr. Lavollée felt bound to make a special One cannot quote a whole passage from a given reservation regarding his Government’s decision novel, even if to give a taste or a distaste for on Article 8, as the inclusion of such a provi- naturalism, and yet one can take with impunity, sion, which was acceptable and indeed essential using education as a pretext, not only the in an agreement between two powers such as substance but also the actual expression of that France and Germany, could present certain substance by a writer who, producing little, drawbacks in a treaty establishing an interna- condensing the work of his intellect in short tional Union, the limits of which were still sentences, can be robbed and can claim nothing uncertain. in return. If France had a La Bruyère today, and Mr. Reichardt said the following: if he were to set down his thoughts in parts, ‘Gentlemen, I cannot accept the views just whole parts would be taken from him as they expressed by Mr. Lavollée in support of his pro- appeared, and when eventually the complete posal that Article 8 of the draft Convention be book came out it would already have been deleted. violated by the many borrowings that had been ‘This Article enshrines a principle recognized previously made from it. not only in practically all earlier conventions, ‘I am as sensitive as you, Gentlemen, to the but also, specifically, by the French Government rights of youth, and to those of universal in the Franco-German Convention of 1883, education and progress; yet the best way of the purpose of which is to provide education holding to their duty those whose vocation it is and scholarship with the means of drawing, to to effect intellectual emancipation is to shew a limited extent, on the literature of other respect for their efforts and to guarantee them countries without having to resort to the reward for their work. author’s authorization. ‘Article 8 should be an expression of will, at ‘This way of thinking has its own justification the very most. One could long for a day to in relation to every country, unless there is a come when authors who write on moral issues desire to hamper the free development of are sufficiently well rewarded for them to waive education. their rights in favour of youth; one could wish ‘This is therefore one of the most universal that expropriation for reasons of moral value principles, and one whose inclusion in the might one day apply to books; however, when General Convention Germany will never we draw up a Convention guaranteeing the renounce, because through the application of inviolability of the rights of authors, I should the laws of the country of origin, provided for like us to confine ourselves to a statement of the in Article 2 of the draft Convention, the principles, and to reserve for the future such
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departures from certain principles as may have actual newspaper or journal in which they been made necessary by experience and the have caused them to appear, that they prohibit public interest. the reproduction thereof. ‘I am not impressed by the argument that In no case shall the prohibition specified in Article 8 is a reproduction of an article in the the above paragraph apply to articles of polit- Franco-German Treaty of 1883. France and ical discussion. Germany sought agreement and found it; but The right of reproduction provided for in it is precisely our purpose to improve and this Article had been motivated by considera- enlarge on the provisions of present treaties, tions comparable to those that justified Article and to inspire the countries of the Union with 8(a). It had even been argued, in the public a desire to reform those treaties that offer interest, that the faculty should be extended to advantages inferior to those that the principles articles on science. The Committee had not con- laid down here lead one to expect. sidered that extension of the right of reproduc- ‘I am therefore maintaining my opposition tion to be dictated by a compelling practical and reiterating my regrets, and I do not believe interest; it had therefore adopted Article 8(b) as that France is contradicting herself in wishing worded above. not to perpetuate, and one day to eradicate by Dr. Janvier made the following speech: common consent, a concession made to laws ‘Gentlemen, that are not her own.’ ‘On several occasions I have asked for the In reply to Mr. Reichardt, Mr. Lavollée said word ‘science’ in the second paragraph of that he interpreted Article 16 of the draft Article 9 to be deleted, and I am asking for its Convention establishing the Union differently deletion again. Do not look on my insistence as from the first Delegate of Germany. According prejudice or as a quite uncalled-for obsession. to him, Article 8 should not be regarded as an It is the expression of a serious, scientific exception to the rule of protection, but rather concern. as a specific provision which, if it remained part ‘A number of the nations that are going to of the specific conventions while being join the Union and of those that will be joining excluded from the General Convention, it later have as yet no real science and practically should be regarded not as contrary to the latter no art. A purely literary article, however beau- Convention, but as relating to matters other tiful, magnificent or masterly it may be, may than those governed by it. not have an immediate interest in being known Following these declarations, Article 8 was to the public at large; more often than not it is adopted in the above form. a piece designed for the delectation of cognoscenti, and more a pleasure than a useful Article 9 or necessary article for mankind. The same is (Article 8(b) of the Programme) true of an artistic object. Art and literature are The German Delegation had made the moreover the intellectual flowers that blossom following proposal (see Question 6 of its only for peoples who have themselves reached Lawful reproduction of questionnaire): the age of maturity. articles Articles excerpted from newspapers or ‘Young, new nations set little store by articles excerpted from periodical journals published in one of the of pure art and literature, because for them newspapers and periodical countries of the Union may be reproduced, in those articles are not of immediate, topical, publications, the original or in translation, in the other absolute interest. The same is not true, for and exceptions to that rule countries of the Union. them, of an article on science. Among the sci- This right shall not however extend to the ences, one should include hygiene, veterinary reproduction, in the original or in translation, and human medicine, modern chemistry and of serialized novels or articles on science or physics, the discoveries and processes of which, art. The same shall apply to other articles of as they become daily more numerous and more some length, excerpts from newspapers or ingenious, must be brought to the attention of from periodical journals where the authors or all peoples of the globe for the greater benefit of publishers have expressly declared, in the each one of them, in as short a time as possible.
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‘Would it not be a real blow to French from this book to enlighten his country, science if the research published by Professor whereas the same passages published in the Lefort, my esteemed master at the Paris Journal des Débats or in La Revue des Deux medical faculty, on the improvements to be Mondes could not be quoted? made on army camps and on the progress of ‘Come, Gentlemen, France is the mother military medicine, were not to be known of logic. everywhere? ‘How could it be that the articles by ‘Would it not be a real blow to French Mr. Anatole Leroy-Beaulieu published in science if the work of Mr. Pasteur, which is La Revue des Deux Mondes and in La Revue better known through magazine articles that Bleue could not be reproduced while they could have summarized and condensed it than be if they were taken from the work by the same through the original works of the scientist him- Leroy-Beaulieu entitled L’Empire des Tzars? self, had not been translated into all languages ‘I call the very close attention of His or reproduced immediately in the press of the Excellency the Ambassador of France to all most diverse countries? these facts, and I present them to him with all ‘Would it not be a real blow to the dissemi- the respect due to his maturity, his qualifica- nation of French science if, to mention only tions and the great name that he wears so well, one’s contemporaries, it were not possible to which name would not have become so famous translate or reproduce magazine articles by if the scientific articles in French magazines and persons such as Marey, Pierre Lafitte, Broca, newspapers, read, translated and reproduced Topinard, Quatefages, Gaston Boissier, everywhere, had not carried it to the very Levasseur, Daubrée or Alfred Maury? confines of the civilized world. ‘That peerless financier Léon Say, one of the ‘I appeal to Consul General Lavollée, who is colleagues of the Ambassador of France, a Doctor ès lettres and who knows these things recently made a trip to Italy. He made a close better than me; I appeal to Louis Ulbach, who study of the people’s banks and mutual credit has been given a very warm reception wherever societies of that country. It was for him a he has been, even by sovereigns, who, by receiv- matter of the greatest haste to publish the ing him with friendship have honoured in him results of his research in Débats, as he wanted all a man who was well acquainted with persons to be acquainted with his opinion on such del- such as Littré, Renan, Berthelot and Wurtz. icate matters. He for one would certainly ‘The French language owes its very univer- object to any international code that prevented sality to the fact that French scientists, ever his science from being known throughout desirous of improving their own renown and Europe. that of their country, have generously and ‘Similar studies have been made by him on patriotically given of themselves in order to the present economic situation in Germany and propagate French science everywhere. Great Britain. He has collected them together in ‘If I dared, if I were qualified to do so, I one volume entitled Le Socialisme d’Etat. So does would protest in their name, having been that really mean that under Article 8 I would raised by the most eminent among them, when have the right to quote from Le Socialisme d’Etat, I hear that, if they were to write articles on sci- and under Article 9 be prohibited from quoting ence, they could forgo mentioning at the foot opinions of the author of that book published in of those articles that they did not want them to the Journal des Débats? be reproduced without permission. ‘It is restricting science, indeed denigrating ‘When Pasteur had succeeded in his it, to think of material interests before moral admirable research on fermentation and beer, interests, which are the fundamental, vital Denmark and the United States of America interests. immediately made the counter-experience of ‘I could say the same of the latest book by his research and bowed before the superiority Leroy-Beaulieu, Le Collectivisme. of French science. Thus it is that the name of ‘How could it ever be that a German, an Pasteur is as popular in those two countries as Italian or an Englishman could quote passages in France.
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‘Likewise the same Pasteur, after having con- is sufficiently rewarded if he knows that his ducted decisive research in Hungary on the dis- name, under the blue cover of that review, is eases of horses and sheep, gave the benefit of his now being taken to Australia, to China, to experience to all breeding countries, whether Canada and elsewhere. on this continent or overseas. ‘German science predominates in the uni- ‘I repeat, where would the greatness and versities of Russia. German scientists and notoriety of French science be before 20 years German magazines are consulted in the Slavonic, had passed if the daily newspapers of France, Anglo-Saxon or Indo-Germanic parts of which give no more than analytical accounts of Europe. a book, sometimes too concise, usually inade- ‘If the very honourable Mr. Reichardt does quate, often without its ‘innermost marrow,’ if not want the word “science” to be removed the daily newspapers and condensed works that from Article 8, we will have delivered a severe not everyone can buy or has the time to read, if blow to German science: either German newspapers and books were the only two vehi- authors will continue to be quoted everywhere cles of thought; if above all the magazine article without being consulted on the desirability of were not there to be translated, commented on such quotation, or they will no longer be and reproduced everywhere, and to indicate quoted at all. the current state of minds, systems and science ‘I do not believe that German scientists will at a given time. be grateful to our eminent colleague for this ‘However prolific he may be, an author lessening of their scientific popularity. cannot write a full volume every time; if he is a Moreover, from the political standpoint, the conscientious and profound author, he will not most loved, the most imitated and the strongest like to prostitute his thought and expose it inad- country is the one whose science is, becomes or equately in a short article in a daily newspaper, is likely to become the most universal. which will be little read, hardly discussed at all ‘I take the liberty of presenting, in the most and practically never reproduced. respectful way possible, the same observations ‘I have the honour to submit all these to the honourable Delegates of Belgium, objections also to the great wisdom and to the Austria, Hungary, Switzerland and Norway, eminent practical sense of Counsellor Reichardt. indeed to you all, Gentlemen. ‘I would point out to him, as respectfully as I ‘If you want the names of your most did a moment ago to His Excellency the esteemed compatriots to go to Brazil, to Chile Ambassador of France, that he is perhaps or to the Plate, to Australia, to India, to Egypt mistaken in affording too much protection to and even to the countries of Europe, there to the monetary interests of German scientists at generate daily more knowledge of and respect the expense of their renown. and love for your individual countries; if you ‘When I was a medical student, I knew want there to be neither contradictions nor everything that was taking place in Germany in ambiguity in the terms and in the spirit of the the medical field; I was familiar with the most Convention that we are going to sign; if you recent work of Helmholtz, Dubois-Reymond, want those compatriots, through rapid knowl- Virchow and Gorup-Bezanez, simply through edge of their work, to become monetarily rich reading in France the reproductions of the arti- as quickly as they have become rich in fame; if cles that they published in the major magazines you want this small country or that to shine as of Germany on specific scientific subjects. the little country of Greece shone in ancient ‘To give an example, it was Dubois-Reymond times, you will, Gentlemen, remove the who gave the exact date of the death of Diderot. word “science” from the second paragraph of He did so in a speech at the Berlin Academy in Article 9. July; in France we knew of this immediately, ‘And, Gentlemen, if my proposal continues because the Revue politique et littéraire of Paris to be unanimously rejected, it will seem immediately translated and published the curious that it should have been a Haitian who article by Dubois-Reymond, and certainly made a proposal such as this one, who supported, without asking his permission. Dubois-Reymond defended and reiterated it with stubborn
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persistence, whereas that honour was entirely Consequently, Article 9 was adopted in the reserved for the countries which, more than all form given above. the others, have the right, and I would even say the duty, to be generous and politic; I am Article 10 Protection of referring of course to France and Germany, (Article 11(a) as proposed by the musical works currently the two leading lights of mankind. German Delegation) ‘Mr. President, I have the honour to ask that In order to complete the draft Convention, the a vote be taken on my proposal.’ German Delegation had proposed the following Mr. Reichardt spoke as follows: ‘Gentlemen, provision concerning arrangements of music, if I were to reply in detail to the address that which is to be found in a certain number of Dr.Janvier has just read out, I should be repeat- existing conventions: ing, in Plenary, what I have had the honour to ‘The right to protection for musical explain quite thoroughly within the Committee. works shall entail the prohibition of pieces I do however wish to say a few words, lest readers called arrangements of music, and also of the minutes reproducing the address by other pieces, or those composed without the Mr. Janvier should make an inaccurate inter- author’s consent on the basis of phrases taken pretation of the intentions of the majority. from those works, or reproducing the original ‘A remote country that felt the need, as work with modifications, deletions or mentioned by Mr. Janvier, to go further into the additions. scientific findings of the scientists of Europe ‘Any disputes that should arise on the would, like us, be prepared to accept the condi- application of the above clause shall be within tions governing the propagation of science. All the jurisdiction of the courts concerned, in Article 9 does is set those conditions. accordance with the legislation of each of the ‘Moreover, the Article does not in any way countries of the Union.’ preclude the possibility of taking advantage of The Committee had expressed the view that scientific results achieved by others, as a something might be gained by settling the borrowing of that kind may be lawfully made point concerned. On the subject of the second not under Article 9, but under Article 8 of paragraph, it had recognized that the legisla- the draft. tion applicable in the event of dispute was that ‘It is under Article 8 that everyone would of the country in which protection was have the right, in the example quoted by claimed. Dr.Janvier, to reproduce the discovery made by The final drafting adopted by the Mr. Dubois-Reymond regarding the setting of Committee was the following: the date of Diderot’s death. ‘Dr. Janvier’s desire that a free rein be given to the exercise of the right of appropriation in Article 10 relation to whole scientific works, however The right to protection for musical works ideal the motive might be, is impracticable for shall entail the prohibition of pieces called legislation.’ arrangements of music, and also other pieces Mr. Lagerheim repeated in connection with which, without the author’s consent, are the present Article the reservations he had composed on the basis of phrases taken made regarding the previous Article. from the said works or reproduce the original A vote was taken on the deletion of the work with modifications, deletions or words ‘on science or’ contained in the second additions. paragraph of the above Article. It is understood that such disputes as The deletion was rejected by eight votes should arise on the application of the above (Germany, Austria, Hungary, Costa Rica, clause shall be within the jurisdiction of France, Sweden, Norway and Switzerland) to the courts concerned, in accordance with the one vote of the Delegate of Haiti. The the legislation of each of the countries of Delegates of Belgium, Great Britain and the the Union. Netherlands abstained. The Article was adopted in this form.
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Protection Article 11 The authors of dramatic or dramatico- concerning the public (Article 8 as proposed by the German musical works shall, throughout the duration performance of Delegation) of their exclusive right of translation, be musical, mutually protected against unauthorized dramatic or The German Delegation had made the following public performance of translations of their dramatico proposal: musical works works. ‘The protection provided for in Article 2 The provisions of Article 2 shall apply also shall apply to the public performance of dra- to the public performance of unpublished matic or dramatico-musical works, whether musical works or those that are published but published or not. whose author has expressly declared on the ‘The provisions of Article 2 shall also apply title or in the heading of the work that he to the public performance of unpublished forbids their public performance. musical works or alternatively published musi- cal works whose author has expressly declared, Dr. Steinbach said the following in his own in the title or at the head of the work name and on behalf of Counsellor Zádor, his concerned, that he prohibits its public colleague from Hungary: ‘On the same grounds performance. as I set forth in connection with Article 6, my ‘The authors of dramatic or dramatico- colleague and I have to vote against the second musical works shall be mutually protected, paragraph of this Article.’ during the life of their exclusive right of Mr. Lagerheim expressed reservations translation, against any unauthorized public regarding the third paragraph of the Article. performance, of the translation of their works.’ Mr. Lavollée observed that the French The French Delegation had proposed the Delegation had withdrawn its amendment in following amendment: the face of the explanation given by the German ‘The provisions of Article 2 shall apply also Delegation, the effect of which was that, as a to the public performance of musical works, result of the application of national treatment and also to the public performance of dramatic to foreign works (Article 2), musical works pub- or dramatico-musical works.’ lished in countries where no ‘droit de mélodie’ The second paragraph was to be like the existed would be deprived of protection in third paragraph of the Article as presented by countries where that right was recognized, in the German Delegation. cases where the authors of those works had not The purpose of the above proposals was taken the precaution of expressly indicating to regulate uniformly everything concerning their intention to prohibit public performance the performance of dramatic, dramatico- of the works. It was therefore in the interest of musical and musical works. The Committee the authors to be made aware, by the actual had considered a provision of that kind to be Article under discussion, of the formalities to be useful. It had considered furthermore that, for met to avoid forfeiture of their rights. published musical works, only those authors The Article was adopted according to the should be protected who had expressely proposals of the Committee. reserved for themselves the right of perfor- mance. Article 12 Recognition of authorship Consequently it had adopted the Article (Article 11(b) as proposed by the proposed by the German Delegation, having German Delegation) however reversed the various paragraphs and In accordance with the decision taken by worded the provision as follows: Conference at its third meeting, regarding Question No. 14, the Committee had con- Article 11 sidered it appropriate to provide in the draft The provisions of Article 2 shall apply to Convention for matters concerning the the public performance of dramatic or conditions required for action to be taken dramatico-musical works, whether published against infringement. Consequently it had or not. adopted the following provision, which was
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already incorporated in a number of existing which the original work is entitled to legal conventions: protection. Seizure shall take place at the request either Article 12 of the public prosecutor or of the interested In order to provide all works of literature or party, in accordance with the domestic art with the protection specified in Article 2, legislation of each country. and in order that the authors of such works may, until proved otherwise, be considered (Article 10 of the Programme—Adaptation) such and consequently be eligible before The Federal Council had proposed the following the courts of the various countries of the Article: Union to initiate actions for infringement, it ‘Adaptation shall be considered infringe- shall be sufficient for their name to be ment and proceeded against in the same way.’ indicated on the title of the work, at the foot In order to make clear what was to be under- of the dedication or preface or at the end of stood by the word ‘adaptation,’ the French the work. Delegation made the following proposal: For anonymous or pseudonymous works, ‘Unauthorized indirect appropriations, such the publisher whose name is indicated on the as adaptations, imitations said to be in good work shall be empowered to safeguard the faith, transcriptions or arrangements of dra- rights belonging to the author. He shall, with- matic, musical or dramatico-musical works out any other proof, be deemed to be the and generally any borrowing from literary, dra- assignee of the anonymous or pseudonymous matic or musical works carried out without the author. consent of the author shall be prohibited. Article 12 was adopted in the above form. ‘Adaptation means the alteration of the appearance of a work, either by deletions, or by Seizure of Article 13 infringing changes of texts and intention, or again by works (Article 9 of the Programme) developments that the original author had not The Federal Council proposal was as follows: intended, for the sole purpose of appropriating ‘Any infringing work may be seized on the work without seeming to translate or import into those of the States of the Union in infringe it.’ which the work is entitled to legal protection. For his part, Mr. Lagerheim had proposed ‘Seizure shall take place at the req------uest the following wording: either of the public prosecutor or of the inter- ‘Adaptation shall be prohibited when it is no ested party, in accordance with the domestic leg- more than the reproduction of an original work islation of each State.’ with alterations, additions or deletions that are The Committee had considered it necessary not essential and would not constitute a new to maintain the above provision, in view of the intellectual work capable of being regarded as fact that, owing to the different terms of being original.’ protection, it was possible that the publication The various proposals mentioned above of the work would be lawful in one country and originated in the idea that it was necessary to unlawful in another. penalize certain reproductions which, through On a proposal by Mr. Lagerheim, the word being disguised, were all the more improper. The ‘countries’ was substituted for ‘States’ in the first Committee had agreed to recognize that neces- paragraph; also the word ‘original ’ was inserted sity, and also to admit that it would be useful to before the words ‘work is entitled to legal give certain indications to the courts in that protection.’ respect. Moreover it had been emphasized that Consequently, the Article was adopted in the word ‘adaptation,’ even though it was used in the following wording: certain recent conventions, did not yet have a finally established meaning, and that, by attempt- Article 13 ing to define it, the Convention would be run- Any infringing work may be seized on import ning the risk of going beyond the intentions of the into those of the countries in the Union in Contracting Parties. Under those circumstances,
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the Committee had preferred not to speak of Article 14 Right of adaptation in the Convention itself, but rather to authorization, (Article 11(c) as proposed by the prohibition, include a declaration in the Final Protocol stating German Delegation) etc., reserved that the indirect appropriations that the term to The following provision had been adopted denoted were not to be considered lawful. governments by the Committee as establishing a right Mr. Lavollée recalled that, in accordance which, while it did unquestionably belong to with their instructions, the French Delegates Contracting Countries, was nevertheless suffi- had proposed the insertion, after Article 7 of ciently important to warrant a special mention: the draft Convention, of an additional Article concerning adaptation. ‘Article 14 Unauthorized adaptation, like imitation said to be in good faith and various other com- ‘The provisions of this Convention shall in no parable methods of disguised infringement, way be prejudicial to the right belonging to had been known and practised for a long time, each of the High Contracting Parties to sanc- and therefore the French Delegates did not tion, control or prohibit, by legislative or think that the Conference should be allowed, domestic policing measures, the circulation, in the draft Union treaty that it was drawing performance or display of any work or produc- up, to pass them over in silence, and thereby in tion in respect of which the competent author- a sense legitimize them by pretermission. It ity would be called upon to exercise that right.’ would not be sufficient to refer to them in the On proposals by Mr. Lagerheim and Final Protocol; it would have been far prefer- Mr. Reichardt, it was decided that the Article able to name and prohibit them directly in a would start with the words: ‘It is understood specific provision included in the Convention; that, etc.,’ and that the words ‘to each of the like the one proposed by the Federal Council High Contracting Parties’ would be replaced by (Article 10 of the Programme) or the one in the ‘to the Government of each of the countries of the Convention between France and Spain (Article 4, Union.’ paragraph 2), which the French Delegates had The Article was therefore adopted in the done no more than reproduce. following form: As for the definition of ‘adaptation,’ the Article 14 French Delegates did not have in mind to give such a definition in strict and final terms that It is understood that the provisions of this dealt with every special case that might arise. Convention shall in no way be prejudicial to That was for the judiciary, which would the right belonging to the Government of ultimately have to pronounce on it according to each of the countries of the Union to sanction, the circumstances of each dispute to be settled; control or prohibit, by legislative or domestic however, if one were unable to formulate a defin- policing measures, the circulation, perfor- ition, one could at least have added to the word mance or display of any work or production in ‘adaptation’ explanations and indications that respect of which the competent authority would have brought out the general meaning would be called upon to exercise that right. enough and would thereby have assisted the courts in the accomplishment of their tasks. That Article 15 Retroactive application was how criminal legislation had proceeded (Article 11 of the Programme) of the when it had specified the characteristics of fraud, The Federal Council had proposed the following Convention for instance, subject to the court’s decision in to works not provision: yet in the each case whether the matter at issue possessed all ‘This Convention shall apply to all works not public the characteristics constituting the offense. yet in the public domain in the country of origin domain In accordance with the findings of the of the work at the time of its entry into force.’ Committee, it was decided that the above ques- It was pointed out that the above Article had tion would be dealt with in connection with to do with the transitional provisions which the Final Protocol. the Final Protocol would rule upon. From the point of view of form, it was indicated that the
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proposed wording was incomplete in the sense special arrangements separately between that it did not mention ‘manuscript or themselves, in so far as those arrangements unpublished works.’ would confer on authors or their lawful repre- As to substance, the Committee had sentatives more extensive rights than those acknowledged that it was very difficult, if not granted by the Union, or contain other impossible, to specify at the outset matters that provisions not contrary to this Convention.’ concerned acquired rights at the time of the On a proposal by Federal Councillor entry into force of the Convention (see the min- Ruchonnet, the Conference decided to replace utes of the third meeting of the Conference, on the expression ‘High Contracting Parties’ by Question 13). Consequently, it proposed ‘Governments of the countries of the Union.’ The reserving the settlement of the matter for con- Article would therefore be worded as follows: ventions that had been or would be concluded, Article 16 and to draft the Article as follows: It is understood that the Governments of the Article 15 countries of the Union reserve the individual This Convention shall apply, subject to such right to make special arrangements separately reservations and conditions as may have been between themselves in so far as those arrange- made by common consent, to all works ments would confer on authors or their lawful which, at the time of its entry into force, have representatives more extensive rights than not yet fallen into the public domain in their those granted by the Union, or contain other country of origin or, in the case of a manu- provisions not contrary to this Convention. script or unpublished work, in the country to Article 17 International which the author belongs. Bureau Count de Dudzeele expressed reservations (Article 13 of the Programme) concerning the above Article, after which it was The Federal Council had proposed the following: Right of adopted. ‘An international bureau shall be established governments of Article 16 the Union to under the name of International Bureau of the make special (Article 12 of the Programme) arrangements Union for the Protection of Literary and between The Federal Council had proposed the Artistic Works. themselves following: ‘This Bureau, the expenses of which shall be ‘It is understood that the High Contracting borne by the administrations of all the Parties reserve the right to make special Contracting States, shall be placed under the arrangements separately between themselves high authority of....., and shall work over for the protection of literary and artistic works, its supervision. The functions of the Bureau in so far as those arrangements do not contra- shall be determined by common consent vene the provisions of this Convention.’ between the States of the Union.’ The word ‘contravene’ used in the above word- In order to bring the title of the projected ing was criticized in various quarters. As the pur- International Bureau into line with that of the pose of the projected Union was to ensure a Union of which it was the organ, the Committee minimum of protection for authors, there was had proposed drafting the Article as follows: nothing against special arrangements conferring Article 17 on them more extensive rights than those guar- anteed by the Union, or providing for them dif- An international bureau shall be established ferently, provided that there was no conflict with under the name of International Bureau of the General Convention. Recognizing the cor- the Union for the Protection of the Rights of rectness of that observation, the Committee had Authors. given the above Article the following form: This Bureau, the expenses of which shall be borne by the administrations of all the coun- ‘Article 16 tries of the Union, shall be placed under the ‘It is understood that the High Contracting high authority of ....., and shall work Parties reserve individually the right to make under its supervision. The functions of the
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Bureau shall be determined by common ‘Such accession shall imply full acceptance consent by the countries of the Union. of all the clauses and admission to all the Article 17 was adopted in the above form. advantages provided for in this Convention.’ In accordance with what had been agreed at Revisions Article 18 of the Convention the end of the third meeting of the Conference, (Article 14 of the Programme) the Committee had amended the provision The Federal Council had proposed the following as follows, in order to make it quite clear provision: that accession to the Convention should ‘This Convention shall be subject to period- be granted only to those countries whose ical revision for the purpose of introducing domestic legislation protected authors against therein such improvements as may perfect the infringement: system of the Union. Article 19 ‘To that end, conferences shall take place successively in one of the Contracting States The countries that are not party to this between delegates of those States. Convention, and provide in their domestic ‘The next such meeting shall be held law for legal protection against the violation in..... (place), in... .. (year).’ of the authors’ rights that are the subject of The drafting of the first paragraph of the this Convention, shall be allowed to accede to above Article appeared somewhat absolute, in it at their request. the sense that it provided for mandatory and Such accession shall be notified in writing periodical revisions of the Convention. The to the Government of .....,* and by it to all Committee had considered that it was sufficient the others. to provide for the possibility of such revisions It shall, as of right, imply accession to all and to specify the procedure to be observed for the clauses and admission to all the advan- the convening of a new Conference. Moreover, tages provided for in this Convention. the setting of the next meeting had seemed to it Article 19 was adopted in the above form. to be more in place in the Final Protocol than in the Convention itself. Consequently, the (Article 16 of the Programme) Committee had drafted the Article as follows: The Federal Council had proposed the following Article: Article 18 ‘The implementation of the mutual This Convention may be subjected to revisions commitments written into this Convention for the purpose of making therein such improve- shall be subject, as necessary, to compliance ments as may perfect the system of the Union. with the formalities and rules laid down by the Questions of that nature, and those that constitutional laws of those of the High concern the development of the Union in Contracting Parties that are bound to propose other respects, shall be dealt with in confer- the application thereof, which they undertake ences that shall be held successively in the to do within the shortest possible time.’ countries of the Union between delegates of As the above provision appeared to be those countries. unnecessary, the Committee had pronounced Article 18 was adopted in the above form. in favour of deleting it. The Committee’s proposal was adopted. Accession to the Article 19 Convention (Article 15 of the Programme) Article 20 Entry into force of the The Federal Council Programme provided as (Article 17 of the Programme) Convention; follows: denunciation ‘States that have not become party to this The Federal Council draft read as follows: Convention shall be allowed to accede to it on ‘This Convention shall be put in force as application. from..... , and shall remain in force for an ‘Such accession shall be notified in writing to the Government of... . . , and by it to all the others. * See Article 17.
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indefinite period until the expiry of one year II. Additional Article Conventions following the day on which it is denounced. in existence ‘Such denunciation shall be made to the (Transitional Provision of the Programme) on the entry The Federal Council Programme contained into force Government authorized to receive accessions. of the It shall only take effect for the State making it, the following provision: international the Convention remaining in full force and ‘Any conventions at present in force between Convention effect for the other Contracting Parties.’ Contracting States that may depart from this The Committee had considered it appropri- Convention on one point or another may nev- ate to set a time limit on the entry into force of ertheless remain in force until the date specified the Convention, and had considered three by them for expiry. In such cases, the subjects months to be entirely sufficient for the pur- or citizens of States of the Union not bound by pose. Consequently, it had drafted the Article those conventions shall be given the benefit, in as follows: the States concerned, as of right, the benefit of the most-favoured-nation treatment with Article 20 respect to the protection of their authors’ This Convention shall be put into force three rights.’ months after the exchange of ratifications, It was pointed out that the above provision and shall remain in force for an indefinite did not, strictly speaking, have transitional period until the expiry of one year following character; the Committee had therefore the day on which it has been denounced. preferred to make it into an Additional Article. Such denunciation shall be made to the With regard to the purpose of the provision, Government authorized to receive accessions. the Committee had considered that the posi- It shall only take effect for the country making tion to be taken by the Union with regard to it, the Convention remaining in full force and specific conventions at present in force should effect for the other countries of the Union. be the same as that taken with respect to subse- The Conference adopted the above Article, quent arrangements, dealt with in Article 12. having however substituted the words ‘has Consequently, the Committee had drafted the been’ for ‘is’ in the first paragraph. Article as follows: The Convention concluded this day shall Exchange of Article 21 retifications in no way affect the maintenance of existing (Article 18 of the Programme) conventions between the Contracting The following provision, proposed by the Federal Countries, provided always that such conven- Council, had been adopted by the Committee: tions confer on authors, or their lawful repre- ‘This Convention shall be ratified, and the sentatives, rights more extensive than those ratifications exchanged at.....within one accorded by the Union, or contain other stip- year at the latest.’ ulations that are not contrary to this With regard to the procedure to be adopted Convention. for the exchange of ratifications, the Done at .....,on..... Committee had considered that it should be The Additional Article was adopted in the specified in the Final Protocol. In accordance above form. with its proposals, the Article was adopted in
the following wording: III. Final Protocol Miscellaneous Article 21 provisions The Federal Council had proposed the following concerning This Convention shall be ratified, and the wording for the preamble: the applica- ‘At the time of effecting the signature of the tion of the ratifications exchanged at . . . . . within one Convention year at the latest. Convention concluded this day, the under- In witness whereof, etc. signed Plenipotentiaries have agreed as follows: Done at ...... , on...... ‘1. It is understood that the final provision of On a proposal by Mr. Reichardt, it was Article 2 of the Convention is without any decided that the vote on the draft as a whole prejudice to the legislation of each of the would be postponed to the next meeting. Contracting States concerning the procedure
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to be followed before the courts and the The Committee had considered first that competence of those courts. item I was unnecessary and could be deleted ‘2. The definition of the words ‘arrangements of without problem. It had moreover made a music’ (Article 4 of the Convention) shall not number of amendments to other items; finally, cover pieces reproduced by automatic instru- it had added some new declarations and ments such as electric pianos, music boxes, stipulations to the Final Protocol. fairground organs, etc. Subject to certain drafting changes made to the text proposed by the Committee, that text ‘3. The exact meaning of the word was adopted by the Conference in the follow- “adaptation” requires definition. ing wording: ‘4. The International Bureau has to be At the time of effecting the signature of the organized; its budget and the contributions of Convention concluded this day, the under- the States of the Union have to be decided upon. signed Plenipotentiaries have declared and ‘Functions. The International Bureau shall stipulated as follows: collect all kinds of information regarding the pro- 1. The common consent provided for in tection of the rights of authors in their literary and Article 15 of the Convention is specified as artistic works, and arrange them into a general sta- follows: tistical work to be distributed to all administra- The application of the Convention to tions. It shall receive from each administration the works that have not fallen into the public list of the works registered by it, and communi- domain at the time of its entry into force shall cate that list to all the other administrations. It take place according to the provisions relating shall undertake studies on questions of general thereto contained in such special conventions interest concerning the Union and, with the aid of as may have been or may hereafter be con- documents placed at its disposal by the various cluded for that purpose. administrations, shall publish a periodical review In the absence of similar provisions in French on the questions which concern the between countries of the Union, the countries purpose of the Union. concerned shall regulate by domestic legisla- ‘The manner of distribution of the periodi- tion, each as far as it is concerned, the relevant cal has to be decided upon. procedures for the application of the principle ‘The International Bureau shall always be at written into Article 15. the disposal of members of the Union with a view to furnishing them with any special infor- 2. It is understood that the manufacture and mation that they may require concerning the sale of instruments serving for the mechanical protection of literary and artistic works. reproduction of melodies that are in the pri- ‘The administration of the country in which vate domain shall not be regarded as consti- the next Conference is to meet shall prepare the tuting musical infringement. programme of the Conference with the assis- 3. The attention of the Plenipotentiaries was tance of the International Bureau. drawn by several of their number to the ques- ‘The Director of the International Bureau tion whether certain categories of unautho- shall attend the meetings of Conferences, and rized indirect expropriation should not be shall take part in the discussions without the expressely prohibited, notably that which a right to vote. He shall make an annual report member of conventions in force designate by on his administration, which shall be commu- the name of ‘adaptation.’ nicated to all the members of the Union. The Plenipotentiaries agreed in their recog- ‘The official language of the International nition that infringement included all types of Bureau shall be French. unlawful violation inflicted on authors’ rights, ‘This Final Protocol, which shall be ratified but they were of the opinion that, instead of at the same time as the Convention concluded listing and defining them, it was preferable to this day, shall be regarded as forming an inte- entrust to the courts the responsibility of eval- gral part thereof, and shall have the same force, uating, in each particular case, the prejudice validity and duration.’ caused by any particular form of infringement.
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4. As the legislation of a number of the coun- The expenses of the International Bureau tries of the Union does not allow photographic which, until such time as a new decision is works to be included among the works to made, may not exceed the sum of .....per which the Convention concluded this day annum, shall be borne collectively by the applies, the Governments of the countries of Contracting Countries, in amounts propor- the Union reserve the right to agree at a later tionate to each country’s population figures. date on the special arrangements to be made The administration of .....* shall draw up by common consent for the purpose of mutu- the budget of the International Bureau and ally ensuring the protection of those photo- supervise its expenditure; it shall also provide graphic works in the countries of the Union. the necessary advances and draw up the annual 5. The organization of the International accounts, which shall be communicated to all Bureau provided for in Article 17 of the the other administrations. Convention shall be determined by regula- 6. The next Conference shall take place tions which the Government of .....* is at ..... , in...... responsible for drawing up. 7. It is agreed that, for the exchange of ratifi- The official language of the International cations provided for in Article 21, each Bureau shall be French. Contracting Party shall present a single The International Bureau shall collect all instrument, which will be deposited, together kinds of information regarding the protection with those of the other countries, in the of authors’ rights in literary and artistic archives of the Government of .....* Each works. It shall coordinate them and publish party shall in return receive a copy of the them. It shall undertake studies on questions record of the exchange of ratifications, signed of general interest concerning the Union and, by the Plenipotentiaries who take part in it. with the aid of documents placed at its dis- This Final Protocol, which shall be ratified posal by the various administrations, shall at the same time as the Convention concluded publish a periodical review in French on the this day, shall be regarded as forming an inte- questions which concern the purpose of the gral part thereof, and shall have the same Union. The Governments of the countries of force, validity and duration. the Union reserve the right to authorize the In witness whereof, etc. Bureau, by common consent, to publish edi- Done at ..... , on..... tions in one or more other languages where The amendments made by the Conference circumstances have demonstrated the need to the draft submitted by the Committee were therefor. the following: The International Bureau shall always be at the disposal of members of the Union with a (a) In item 4, the words ‘Contracting view to furnishing them with any special Governments’ were replaced by information that they may require concerning ‘Governments of the countries of the Union.’ the protection of literary and artistic works. (b) In the third paragraph of item 5, the The administration of the country in expression ‘Governments of the countries which a Conference is to take place shall of the Union’ was likewise substituted for prepare the work of that Conference with the ‘Contracting Parties.’ assistance of the International Bureau. (c) At the end of the same paragraph, the The Director of the International Bureau Conference preferred to say ‘have demon- shall attend the meetings of Conferences, and strated the need,’ rather than the future take part in the discussions without the right tense used in the Committee’s wording. to vote. He shall make an annual report on his (d) Finally, in the fifth paragraph of the same administration, which shall be communicated item 5, the words ‘the next Conference’ to all the members of the Union. were replaced by ‘a Conference.’ On the subject of the official language * See Article 17 of the draft Convention. adopted for the publications of the
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International Bureau, the President explained IV. Recommended Principles for the following: Subsequent Unification ‘In the Special Committee of the Bureau, it was proposed that one add that, in case of need, The President recalled that, at the first meeting, such publications could be made in one or the German Delegation had submitted a prior more languages other than French. Within the question to the Conference regarding the Special Committee this proposal, although possible desirability of standardizing the opposed by Mr. Baetzmann, the Delegate of provisions on copyright immediately. Norway, was nevertheless adopted by three In that connection a draft resolution had been votes to two. In the Plenary Committee, proposed by Federal Councillor Ruchonnet, but Mr. Baetzmann renewed his objections to any it had been decided that the vote would be post- amendment made to the Federal Council draft poned until the end of the discussion. Since then in that respect. After the matter had been the Committee had concerned itself with the referred to the Drafting Committee, which point, and proposed to the Conference that it accepted a wording that enabled Contracting adopt the following resolution, which appeared States to authorize publication in several lan- to reply to the question raised: guages, Mr. Baetzmann stated that, whereas he The International Conference for the maintained his position, he nevertheless con- Protection of Authors’ Rights, sidered it unnecessary to press the point.’ Considering the diversity of the provisions On the subject of the same question, in force in the various countries concerning Dr. Dambach spoke as follows: several important points of legislation on the ‘The second paragraph of item 5 stipulates protection of authors’ rights, that the official language of the International Considering also that, however desirable the Bureau will be French. unification of the principles governing the sub- ‘In the Committee, we agreed to say that the ject matter might be, a Convention embodying stipulation in question meant merely that writ- uniform provisions on those points might not ten matter and official instruments originating win acceptance from a certain number of with the International Bureau had to be in countries at the present time, French. On the other hand, authorities and Considering, however, that international individuals who sent letters, etc., to the codification is in the natural order of things and International Bureau could make use of their will establish itself sooner or later, and that the own languages. ground should be prepared for that event with an ‘The Committee decided to give that expla- indication, at the outset, of the direction in which nation in Plenary, and I request that it be it is desirable that such codification take place, included in the minutes, in order that all doubt Sees fit to submit the following wishes to may be removed as to the real meaning of the the Governments of all countries: paragraph in question.’ I. The protection granted to the authors of On the subject of the contributions of literary or artistic works should last for their Contracting States to the International lifetime and, after their death, for a number of Bureau, the President explained that the sys- years that should not be less than 30; tem adopted for other international bureaux II. The trend towards full assimilation of had the shortcoming of being quite complex, the right of translation to the right of repro- and that had seemed preferable to set the con- duction in general should be promoted as tributions in proportion to the population fig- much as possible. ures of each country, as had been done for the On the subject of the first wish, Mr. Lavollée Metre Convention. said that the French Delegation would have In the course of the discussion it was agreed preferred the term of protection after the death that, in the fourth paragraph of item 5, the of the author to be extended to 50 years. expression ‘members of the Union’ denoted Mr. Lagerheim endorsed that statement. ‘Governments of Contracting Countries,’ and not On the subject of the second wish, the nationals of those countries. Counsellor Steinbach declared in his own
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name and on behalf of his colleague, the the examination in depth that they have Delegate of Hungary, that he could not undertaken, that it would be in the general endorse that wish in view of the new interest to harmonize as much as possible the Hungarian legislation. principles governing the subject in the various Mr. Louis Ulbach made the following countries, and that a Union should be set up declaration on behalf of the French Delegation: for the purpose that is similar to those existing ‘It has been seen fit, in deference to the for other subjects of eminently international Governments that would refuse to assimilate character. Consequently, they have agreed to the right of translation to the right of reproduc- submit to their Governments, for considera- tion, to remove the words ending the expres- tion, a draft Convention specifying the mini- sion of the wish, which presented it as the mum rights which, in the opinion of the invocation of a principle of justice. I understand Conference, the Contracting Countries could the scruple, but I do not share it. Every day a mutually guarantee to the authors of literary Government is asked to accede to a principle of or artistic works. justice and liberty, in the hope that it will find The Conference also felt bound to record in an opportunity to elevate its task, without that an appended document the expression of its request or advice causing offence. One believes wishes regarding two essential points which it worthy of greater progress. If it refuses to it did not consider itself able to regulate make that step forward, if it is held back by uniformly at the present time. considerations of caution or political tact, it The Delegates will exercise due diligence in postpones the wish without actually having handing to their Governments the result of misconstrued it, and the principle of justice their deliberations contained in the drafts remains an argument for other, renewed appended hereto, and request the Swiss wishes. I believe that we could have formulated Federal Council to convey it also to those this statement in a more diplomatic manner, Governments that have not taken part in the without deleting it. I am mentioning it so Conference, and to continue to take such that it will be reflected in the record of our action as may be necessary for the conclusion deliberations.’ of the agreement for which it has taken the As no one asked for a vote to be taken, the initiative. proposals of the Committee were adopted with Done at BERNE, on September 18, 1884, one amendment consisting in the last part of in one copy which shall be deposited in the the recital being worded as follows: archives of the Swiss Confederation. Considering, however, that international The Conference decided to proceed on the codification is in the nature of things and will following day to a second reading of the other establish itself sooner or later, and that the proposals made by the Committee, after which ground should be prepared for that event with the final minutes would be signed. an indication, at the outset, with reference to The next meeting was to take place on the certain essential points, of the direction in following day, September 18, at noon. which it is desirable that such codification The meeting rose at 7.30 p.m. take place.
IN THE NAME OF THE V. Final Minutes of the CONFERENCE: Conference After consideration of the proposals of the NUMA DROZ Committee, the final minutes of the Conference President were finally adopted, after some explanations, in the following wording: Charles Soldan Bernard Frey The undersigned, Delegates to the International Conference for the Protection Secretaries of Authors’ Rights, are convinced, after
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Minutes an approach which you considered excessively cautious; we have been pleased to note that the of the Conference has not hesitated to propose to the Sixth Meeting Governments concerned that the Programme be broadened and completed on a large num- of the ber of essential points. The draft Convention that has emerged from our deliberations has Conference for the thus become a virtually complete code of Protection of Authors’ international legislation on the protection of Rights authors’ rights. Once the Union has been established, it will not be difficult, in subse- September 18, 1884 quent Conferences, to fill the gaps that the Presided over by Federal Councillor Numa Convention still has with respect to the subject matter to be protected. Droz, President ‘In other respects, of course, the draft Convention has not been able to accede to all The meeting opened at 12.15 p.m. wishes. Whereas, for one thing, certain delega- All the members of the Conference were tions might have wished for more extensive and present. more uniform protection of authors’ rights, Pursuant to the decision taken at the previous due account did also have to be taken of the fact meeting, a second reading was made of the vari- that the ideal principles whose triumph we are ous drafts approved the previous day by the working towards can only progress gradually in Conference, which were finally adopted, namely: the so-varied countries that we wish to see join- ing the Union. Consideration also has to be I(a) Draft Convention for the Establishment given to the fact that limitations on absolute of a General Union for the Protection of protection are dictated, rightly in my opinion, by the public interest. The ever-growing need Authors’ Rights; for mass instruction could never be met if there I(b) Draft Additional Article to the above were no reservation of certain reproduction Convention; facilities, which at the same time should not I(c) Draft Final Protocol; degenerate into abuses. These were the various II. Recommended Principles for Subsequent viewpoints and interests that we have sought to Unification. reconcile in the draft Convention. Those of us whose wishes went further will have to remem- As the Conference had at that point ber that a number of delegations contested completed its task, the President made the other points which to them seemed too following address to its members: advanced and too contrary to the legislation of ‘Gentlemen, their countries, and that they accepted the draft ‘Before proceeding to the signature of the as a whole only in order to give evidence of their final minutes, permit me to summarize and genuine desire for agreement. Our work is give my appreciation in a few words of the out- therefore the result of mutual concessions, and come of the work of the Conference. it is with that in mind that it is recommended ‘Thanks to the friendly and conciliatory to all Governments for approval. spirit that has prevailed at all times between us, ‘If it were otherwise, in other words if no and which each delegation has sought to country were called upon to make sacrifices in demonstrate, it has been possible to overcome the interest of the common work, I take the lib- the main difficulties standing in the way of the erty of saying that that work would not be nec- work of unification for which we have estab- essary. For as soon as all laws are absolutely in lished the groundwork. agreement with each other, an international ‘The Programme of the Swiss Federal treaty would have no effect other than that of Council had confined itself within the limits of recording the fact of their agreement. But it is
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the very purpose of the Union that we want to On completion of that operation, it was form to bring about that agreement, by effect- agreed, at the request of Mr. Reichardt and ing the disappearance one after the other of the after an exchange of observations between him more or less arbitrary differences that exist in and Mr. Lagerheim, Mr. Lavollée and the connection with the protection of literary and President, that, in deference to the Gover- artistic works. nments represented, the decisions of the ‘Considering the results achieved as a whole, Conference would not be publicized before the International Literary Association is able November 1, 1884. For the purposes of the press, and pleased to note that the majority of the however, the Officers of the Conference could wishes expressed by it in its 1883 draft have nevertheless issue a concise account of the main been satisfied. The only one that has not been resolutions submitted to the distinguished satisfied to the extent advocated was that Governments for consideration. regarding the right of translation; we have, The delegates undertook to abide by what however, caused a significant step forward to be had just been agreed. taken with the assimilation of that right to the The President adressed the assembly in the right of reproduction in general, and with the following terms: introduction of a term of protection longer ‘Gentlemen, than that existing in a certain number of coun- ‘Now that we have completed our work and tries, and we should like to think that the wish that we have only to adopt the minutes of our expressed by our Conference on the subject, last meetings, I wish to express once again, as I which figures among the recommended princi- am sure you all do, my great satisfaction with ples for subsequent unification, will not be a these days that we have spent together. Whether dead letter. during the hard work of our meetings, or in the ‘And now, Gentlemen, we must not content few hours of leisure that we have allowed our- ourselves with saying, like Propertius, In selves, we have learned to know and value each magnis voluisse sat est, as we have to convert our other as representatives of different languages resolutions into realities. I like to think that and races. In the great republic of letters and the we shall all do our utmost to bring about arts, in whose service we have all been attending acceptance of our work on the part of the this Conference, those differences have to merge Governments that have sent us here. I like to in harmony; the spirit of intellectual brother- think that the Governments of the countries hood that has reigned between us will develop not represented, all or almost all of which have within the Union and become one of the most hinted at their eventual accession, will also powerful factors of civilization and peace. make a favourable appraisal of the result of ‘I thank you, Gentlemen, for the honour our work. Finally, I hope that not too long a you have done me by calling on me to conduct period will elapse before that day when the the work of a meeting of such eminent men. I Plenipotentiaries of the Governments of all thank you for the kindness that you have shewn civilized countries, convened to a final me, which has rendered my task as easy as it has Conference, will place their signatures at the been agreeable. foot of an instrument similar to the one that we ‘In the name of my country, I thank you for have prepared for them. having accepted its invitation to come and ‘Having formulated this hope, I invite you, meet here, and for having entrusted the Federal Gentlemen, to be so kind as to proceed, in the Council with the honourable task of imple- alphabetical order of the [French] names of menting your resolutions by communicating States, with the signature of the final minutes them to the Governments of the other coun- of the Conference.’ tries. I am authorized to tell you that the The delegates then proceeded with the sig- Federal Council will be pleased to continue its nature of the final minutes adopted on the pre- action with a view to bringing about the final vious day, their names being called in the establishment of the Union. alphabetical order of the [French] names of the ‘I speak on behalf of the Conference in countries that they represented. addressing to our two so-devoted secretaries,
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Mr. Soldan and Mr. Frey, all our gratitude for the ‘It is his conciliatory spirit, his sympathetic excellent and expeditious manner in which they assessments of the various opinions that have acquitted themselves of their difficult tasks. been expressed in the course of our debates, his ‘My final wish is that you should take home skill in drafting, that in my view have set us an from Switzerland the same pleasant memories example of mutual understanding, while, by of your stay as you have left. May it come to making agreement on our draft easier, he has pass that we will again meet to salute the advent efficiently seconded our President in the task of of the creation to which we have devoted our ensuring now, as far as possible, the future efforts.’ success of our work. H.E. Mr. Emmanuel Arago replied in the ‘Therefore, Gentlemen, in addressing our following terms: sincere thanks to Mr. Arago, we are accom- ‘Gentlemen, plishing not a “formality to be complied with” ‘Each of us is going to report to his to qualify for membership of the Conference, Government on the outcome of our work, but rather a “condition prescribed by the legis- completed today in the perfect agreement that lation of the country,” which we shall call all of us desired, without being absolutely sure courage and conviction. of it beforehand. There is nothing more pre- ‘Gentlemen, colleagues, friends, as a testimony cious, more reassuring than this agreement on to our gratitude towards our two Presidents, the future of a work whose first success will I would ask you to rise to your feet.’ soon be bringing about the organization of a The Conference was unanimous in its common homeland in which science, letters endorsement of this expression of thanks, and and the arts may prosper in brotherly compan- H.E. Mr. Emmanuel Arago spoke a few words ionship. So none will forget the sincere grati- of thanks. tude that we have so frequently expressed to the Mr. Louis Ulbach took the floor in his turn: Swiss Government, our generous host, and ‘Gentlemen, which we also owe to our able and valued ‘I should not take the liberty of taking the President, Federal Councillor Numa Droz. So floor after the Ambassador of France if I did not our thanks, Mr. Droz, our double thanks, to have a special—I hesitate to say personal— your country and to you.’ word of thanks to address to the Federal Councillor Reichardt spoke as follows: Government which has received us so well, to ‘Gentlemen, Councillor Droz who has so admirably ‘We are duty bound to address warm thanks presided over us, and to you all, Gentlemen, to His Excellency the Ambassador of France, for who have been so valuable and sympathetic in having been so kind as to express, with all the your collaboration. depth and eloquence that we have have come to ‘However, I had the honour of being dele- expect of him, the sentiments of gratitude that gated by France only because I belong to the we feel towards our very honoured President. great Association whose initiative you have just ‘We have another duty to perform, which is commended, and also to that legion of writers to thank His Excellency Mr. Emmanuel Arago to whom you have just opened up so many in his capacity as Vice-President of the countries. Conference. ‘When I return tomorrow to more modest ‘Neither shall I accept His Excellency’s pursuits, I shall retain a warmth of memory, a possible objection that, strictly speaking, he spirit of mutual emulation and a glow of men- has practically had no opportunity to perform tal awareness from this exalted gathering that his vice-presidential duties. will give me support and satisfaction until the ‘Delegates, I think I am accurately interpret- end of my human task. ing your sentiments when I place alongside ‘We have worked hard, Gentlemen, and I the rigours of the vice-presidency the goodwill shall never forget that inspired enthusiasm, which, in the person of Mr. Arago, has, if I fired by a unanimous resolution to achieve may put it in that way, “vice-presided” over our agreement on principles that are the most meeting. delicate and the most recently submitted to
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European diplomacy for discussion. You will Mr. Zádor, Mr. Louis Ulbach, Mr. Lavollée take with you the conviction of having accom- and Mr. A. d’ Orelli, who had presented their plished indelible work. I myself shall take some apologies. invaluable lessons back to my friends. The agenda called for the approval of the ‘It is often those most directly concerned minutes of the fifth and sixth meetings of who are most ignorant of the very nature of the Conference, which had been distributed to their professional ambition. In more than one the delegates in draft form. respect you have confirmed my faith, and in The minutes were adopted with certain many others you have actually increased it. amendments proposed by the President and by ‘It is therefore in the name of the Mr. Reichardt, Mr. Ruchonnet, Mr. Lagerheim, International Literary and Artistic Association Mr. de Dudzeele and Mr. Baetzmann. that I thank you for the honour bestowed on its Mr. Reichardt subscribed, in the name of his President, and it is on behalf of my fellow men colleagues, to the thanks that had been of letters and the artists of all countries that I addressed to the Secretaries on the previous day. thank you for all the good that you have done The President addressed some words of them.’ farewell to the delegates, and announced the After the above speeches, the President closure of the Conference. announced that the Conference would meet The minutes of the present meeting were one last time, at 11 a.m. on the following day, immediately read and adopted. to approve the minutes. The meeting rose at 12.10 p.m. The meeting rose at 1.15 p.m. IN THE NAME OF THE CONFERENCE: IN THE NAME OF THE CONFERENCE: NUMA DROZ NUMA DROZ President President Charles Soldan Bernard Frey
Charles Soldan Bernard Frey Secretaries Secretaries Final Minutes Minutes of the of the International Conference Seventh Meeting for the of the Protection of Authors’ Conference for the Rights Protection of Authors’ Rights September 19, 1884 The undersigned, Delegates to the International Conference for the Protection of Presided over by Federal Councillor Numa Authors’ Rights, are convinced, after the exam- Droz, President ination in depth that they have undertaken, that it would be in the general interest to The meeting opened at 11.10 a.m. harmonize as much as possible the principles All the members of the Conference were governing the subject in the various countries, present with the exception of Dr. Dambach, and that a Union should be set up for the
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purpose that is similar to those existing for Governments that have not taken part in the other subjects of eminently international char- Conference, and to continue to take such acter. Consequently, they have agreed to sub- action as may be necessary for the conclusion mit to their Governments, for consideration, a of the agreement for which it has taken the draft Convention specifying the minimum initiative. rights which, in the opinion of the Conference, Done at BERNE, on September 18, 1884, the Contracting Countries could mutually in one copy which will be deposited in the guarantee to the authors of literary or artistic archives of the Swiss Confederation. works. The Conference also felt bound to record in Reichardt F.O. Adams an appended document the expression of its Meyer Louis-Joseph wishes regarding two essential points which it Dambach Janvier did not consider itself able to regulate uni- Emil Steinbach B.L. Verwey formly at the present time. Jules Zádor A. Lagerheim The Delegates will exercise due diligence in Jules Zádor F. Baetzmann handing to their Governments the result of G. Errembault deDudzeele L. Ruchonnet their deliberations contained in the drafts Emmanuel Arago Droz appended hereto, and request the Swiss Federal Louis Ulbach A. d’Orelli Council to convey it also to those René Lavollée
Records of the Second International Conference for the Protection of Literary and Artistic Works
Convened in Berne September 7 to 18, 1885
Minutes Plenipotentiary of Belgium, Berne. of the France: H.E. Mr. Emmanuel Arago, First Meeting Ambassador of France to the Swiss of the Confederation, Berne. Mr. Louis Ulbach, President Conference for the of the International Protection of Literary and Literary Association. Artistic Works Mr. Rene Lavollée, Consul General of France, September 7, 1885 Doctor ès lettres. Mr. Louis Renault, Professor of Public International The meeting was opened at 10.20 a.m., in the Law, Faculty of Paris. hall of the Council of States. The following Germany: Mr. Reichardt, Private were present: Legation Counsellor, Reporting Counsellor to Belgium: H.E. Mr. Maurice Delfosse, the Foreign Affairs Envoy Extraordinary Department of the and Minister German Empire.
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