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
3.01 Article 3(3) of the Berne Convention contains a definition of "published works". The first half of this provision offers the definition in positive terms: "The expression 'published works' means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work". The second half offers certain exclusions from the coverage of the definition: "The performance of a dramatic, dramatico-musical, cinematographmc or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication".
3.02 The definition of "published works" and the determination of "the country of origin" of a work according to Article 5(4) of the Berne Convention have an impact on the application of certain important operative clauses of the Convention. These include: application of the protection of the Convention to authors who are not nationals of one of the countries of the Union but whose works have been first published in one of those countries (Article 3(1)(b)); the comparison of terms of protection (Article 7(8)); and application of the Convention to works already in existence when their country of origin first joins the Convention (Article 18(1)).
3.03 One of the objectives of the proposed Treaty is to offer solutions to certain questions concerning the impact of new technologies on authors' rights. Numerous questions are posed, for example, by the interactive, on-demand transmission of works to the public directly into their homes or offices. New forms of electronic publishing have already replaced some forms of traditional dissemination of works. As far as the public is concerned, these new forms of publishing are functionally no different than the traditional forms: the works are available.
3.04 Inevitably, the question has arisen as to whether these new forms of publication should be subject and entitled to the same legal treatment as the traditional forms. Are works that have been disseminated by means of databases and communication networks "published works" in the sense of the Berne Convention? Is a new extended definition of "published works" needed?
3.05 In fact, the provisions of Article 3(3) of the Berne Convention may be applied quite satisfactorily to new forms of electronic publication. The key requirement of Article 3(3) is the availability of copies sufficient to satisfy the reasonable requirements of the public. Electronic publishing over a computer network may easily satisfy this requirement. In an open network environment, any member of the public may have access to copies that can be downloaded into the memory of his computer. Different technical and commercial conditions may, of course, apply in respect of access.
3.06 The conclusion above is further supported by another clause in the same provision of the Berne Convention according to which " 'published works' means works ... , whatever may be the means of manufacture of the copies". In traditional publishing, copies are first manufactured and then distributed. In electronic publication through networks, copies are produced at the recipient end after the act of dissemination. "The means of manufacture" in the former case is local production and in the latter case is "tele-reproduction". Nothing precludes the interpretation of Article 3 of the Berne Convention to include decentralized production of copies by means of communication networks.
3.07 The meaning of these provisions has become central to the question of whether and how the Berne Convention can continue to protect works in the new digital environment. To the extent that any nations may now have different opinions on the meaning of these provisions there are certainly well-founded reasons to require that all Contracting Parties interpret and apply these provisions in a uniform manner. This is why, in order to exclude any uncertainty, it is proposed that the interpretation presented in Notes 3.05 and 3.06 above should be confirmed by an explicit clause in the proposed Treaty.
3.08 After this interpretation of published works has been adopted, one further essential question arises: What is the place of publication? There are two possible answers. The place of publication could be any place where copies are available; this might include all countries of the world simultaneously. On the other hand, the place of publication could be considered to be the location of the "source" of the work. There is good reason to adopt the latter interpretation. The identification of a place of publication in the traditional framework is an acknowledgement that certain practical and economic activities have occurred in that location, and the same is true in the electronic publishing framework: the product of the author's efforts, although available anywhere, is located in only one place.
3.09 If, however, a work were considered to be published in all countries where copies of it are available, many unintended consequences would result. All works published electronically through networks in countries outside the Berne Union would be considered to have been published in every country of the Union. Members of the Union would thus be obligated to protect these works even in the absence of protection for their own works. When applying the Berne Convention rule on comparison of terms of protection, simultaneous publication in all countries of the Union would lead to problematic results. In the case of simultaneous publication in several countries of the Union, the country of origin is considered to be the country whose legislation grants the shortest term of protection. This would reduce the term of protection for works electronically published to the shortest term available anywhere in the Union.
3.10 The consequences discussed in the previous Note are unsatisfactory and lead to legal uncertainty. To leave this interpretation open would not encourage joining the Convention.
3.11 In paragraph (1) of Article 3, it is proposed that Contracting Parties should consider as "published works" such literary or artistic works which have been made available to the public by wire or wireless means so that it may fairly be said that copies are available. In particular, it is required that the works have been made available in such a way that members of the public may access these works from a place and at a time individually chosen by them. The wording of paragraph (1) follows closely the clause in Article 10 of the proposed Treaty concerning the making available aspect of the right of communication. A natural requirement is that the conditions specified in Article 3(3) of the Berne Convention must be fulfilled. Publication shall take place with the consent of the author, and the nature of the work must be taken into account when considering whether the availability of copies satisfies the reasonable requirements of the public.
3.12 In paragraph (2), it is proposed that Contracting Parties shall consider works identified in paragraph (1) to have been published in the Contracting Party where the necessary arrangements were made for availability of the works to the public. The place of publication is the country where the source data file is established and where access to the work has been provided for. The expression "necessary arrangements" is intended to mean such steps as are an absolute conditio sine qua non for the availability of the work. Mere linking or routing arrangements are not sufficient.
3.13 The European Community and its Member States took the view in their submission for the May 1996 session of the Committee of Experts that the question of the impact of new technologies on the provisions of Article 3(3) of the Berne Convention could be examined.
3.14 The definition of published works in the Berne Convention exists exclusively to effectuate the functioning of the international system of protection under the Convention. Nothing precludes the enactment of national laws that define this term quite differently to serve national purposes.
Notion and Place of Publication
(1) When literary or artistic works are made available to the public by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them, so that copies of these works are available, Contracting Parties shall, under the conditions specified in Article 3(3) of the Berne Convention, consider such works to be published works.
(2) When applying Article 5(4) of the Berne Convention, Contracting Parties shall consider works referred to in paragraph (1) of the present Article to be published in the Contracting Party where the necessary arrangements have been made for availability of these works to members of the public.
[End of Article 3]