DATE: August 30, 1996
prepared by the Chairman of the Committees of Experts
on a Possible Protocol to the Berne Convention
and on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms
2.01 The basic rules and principles of the Berne Convention are presently (August 1, 1996) applied by the 119 countries of the Berne Union. These rules and principles include conditions for protection, the basic principle of national treatment, principles of automatic protection and independence of protection and a mechanism for identification of the country of origin of a work. Since these principles are definitely established and such a great number of States have adapted their laws and legislative practices to them, it seems feasible and well-founded to build new protection for literary and artistic works upon these same principles.
2.02 It is therefore proposed in Article 2 that the provisions of Articles 3 to 6 of the Berne Convention, containing these central principles, should be applied in respect of the protection provided for in the present draft Treaty. Thus, these provisions would be applied to all new rights and aspects of protection introduced in the present draft without reproducing or "re-inventing" them. This is an economical solution as regards the negotiations on the proposed Treaty, the implementation of its obligations in national laws and in terms of the legal certainty that flows from the availability of established and well-known interpretations.
2.03 According to the proposed Treaty, the provisions of Article 3 of the Berne Convention would be applied in respect of the protection afforded by this Treaty. Paragraph (1) of Article 3 of the Berne Convention includes provisions on the main points of attachment: the nationality of the author and the place of publication of the work. Paragraph (2) assimilates habitual residence of an author to nationality. Paragraph (3) defines the expression "published works". Paragraph (4) defines simultaneous publication. Article 4 of the Berne Convention extends the protection of the Convention to authors of cinematographic works, works of architecture and certain other artistic works, even where the conditions of Article 3 are not met. Article 5 of the Berne Convention confirms in its paragraph (1) the principle of national treatment and the obligation to grant the rights specially granted in the Convention and in paragraph (2) the principles of formality-free or automatic protection and independence of protection. Paragraph (3) specifies that national law governs protection in the country of origin. Paragraph (4) lays down the rules that determine the country of origin of a work. In addition, a reference to Article 6 of the Berne Convention has been made in order to provide for the possibility of restricting in certain cases the protection given to works of non-nationals of other Contracting Parties.
2.04 All the rules listed in the preceding paragraph would be applicable to the protection provided for in the proposed Treaty.
2.05 Some of these rules might be considered to be superfluous or unnecessary in the context of the proposed Treaty. In spite of this, it is submitted that the incorporation of the four provisions by reference helps to place the rights contemplated by the proposed Treaty in the proper context of a comprehensive system.
2.06 Perhaps the greatest significance of this provision is that Contracting Parties restate on a high international level the cornerstone principle for the protection of literary and artistic works: the principle of national treatment.
2.07 The provisions of this Article are similar to the provisions proposed in Article 3 of the draft New Instrument as far as the criteria for eligibility for protection are concerned; provisions of an existing Treaty are applied by reference.
[End of Notes on Article 2]
Application of Articles 3 to 6 of the Berne Convention
Contracting Parties shall apply the provisions of Articles 3 to 6 of the Berne Convention in respect of the protection provided for in this Treaty.