[Guest post] Universal Copyright Convention – RIP

The IPKat has received the following comment from Katfriend Jørgen Blomqvist (Centre for Information and Innovation Law, Faculty of Law, University of Copenhagen) on the recent announcement relating to the accession of Cambodia to the Berne Convention.

Here's what Jørgen writes:

Universal Copyright Convention – RIP

by Jørgen Blomqvist

On December 9, 2021, WIPO announced that the Kingdom of Cambodia has joined the Berne Convention for the Protection of Literary and Artistic Works, with effect from March 9, 2022. This is, of course, very important for the creative communities of Cambodia. Internationally, it may not be a major event, since a very high number of countries have already ratified or adhered to the Convention. With the joining of Cambodia, the number of Member States of the Berne Union has reached 180. There is, however, a broader significance of that adherence, namely the final obsolescence of the Universal Copyright Convention (UCC).

The UCC was originally adopted in Geneva in 1951 and later revised in Paris in 1971. It was originally adopted in response to the problem that a significant number of countries, not least in the Americas, considered the demands for protection under the Berne Convention too strict. For the USA, for example, the prohibition against formalities as precondition for protection were not compatible with the system that applied under her national law. It foresaw both registration of the work at the Copyright Office, deposit of copies, attachment of a copyright claim (© [year of first publication] by [name of owner of rights]), and, in certain cases, manufacture of the copies within the country. Instead, international protection of works originating in the USA was obtained in various ways: through bilateral agreements; by means of “backdoor protection” where works were first or simultaneously published in Berne Union countries; and through multilateral conventions. In particular, a string of regional copyright conventions were adopted and revised along the way in the Americas, including in particular the 1910 Buenos Aires Convention (the Panamerican Copyright Conventions).

The adoption of the Universal Copyright Convention did not abrogate those regional conventions, but in reality, it became the main international instrument regarding the copyright relations of the countries that did not feel ready to join the Berne Union. It offered a combination of national treatment and minimum protection at a somewhat lower level than that of the Berne Convention. Its importance can be seen from the fact that, for example, on January 1, 1980, the number of countries party to the Berne Convention was 71, while the similar number for the UCC was 73 (Copyright 1980, pp. 39; 43). More importantly, however, of the latter 73 countries, 25 were only party to the UCC and not to the Berne Convention. Among those were important countries as the Soviet Union and the USA, as well as a number of developing countries, predominantly in Africa and Latin America. Thus, the UCC was not an exclusive club for non-Berne Union countries.

In the 1980s and onwards, however, the number of countries party to the Berne Convention steadily increased, first gradually. Later adherence leaped forward, not least as a consequence of the incorporation of the substantive provisions of the Berne Convention in the TRIPS Agreement in 1994 (except for the protection of moral rights) and, eventually in the 1996 WIPO Copyright Treaty (WCT). Since Laos joined the Berne Convention in March 2012, Cambodia remained the sole country party to the UCC that was not at the same time also party to the Berne Convention.

Both Conventions contain provisions that regulate their relation to each other. The Berne Convention does not explicitly mention the UCC, but provides in its Article 20, in general, that countries of the Union may “enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable.” Accordingly, the Berne Convention neither prevents a country from joining the UCC nor allows the lower protection level of the latter to apply in the relations between Berne Union countries. The UCC, on the other hand, states in its Article XVII that it shall not in any way affect the provision of the Berne Convention. Furthermore, a declaration is annexed to that Article, according to which works originating in a developed Berne Union country that has withdrawn from the Berne Convention shall not be protected under the UCC. The declaration also states that the UCC shall not be applicable to the relationships among countries of the Berne Union in so far as it relates to the protection of works having as their country of origin, within the meaning of the Berne Convention, a country of the Berne Union.

Top negotiator

With no more countries party to the UCC that are not at the same time members of the Berne Union, it is a consequence of these provisions that the substantive provisions of the UCC are now obsolete. Obviously, they may be revived in the future, if a country outside of the Berne Union should decide to join the UCC, but that is not likely to happen. In principle, however, one provision related to the UCC will remain in force, namely Protocol 2 to the 1971 Act of the Convention, which was adopted by nine countries. Under that Protocol, the UCC will apply to works published by certain intergovernmental organizations, namely the UN and its Specialized Agencies and the Organization of American States. The problem is here that publications of such organizations frequently do not indicate the names of their authors, and if the distribution of copies originates at the headquarters of the organizations, they are extraterritorial and therefore the works cannot be considered published in the territory of the host country. In practice, however, the importance of this Declaration is probably minimal, as most such organizations rely on commercial partners in the book trade to distribute their publications. When in such cases the public distribution takes place from the premises of a commercial operator, there is no longer any problem of diplomatic extraterritoriality.

The demise of the UCC is a consequence of the growing political wish for robust international protection of copyright, as witnessed not least by the adoption of the TRIPS Agreement, which created strong links between trade and intellectual property protection. It was in that context, and not least after the USA became party to the Berne Convention in 1989, that the UCC turned superfluous. However, one should not ignore that it played an important role in its time linking the Americas with the rest of the world in terms of international copyright protection. Before the UCC, for example, examination of the international protection status of US works in Europe had to done on a work-by-work basis, taking account of the nationality of co-authors, country of first or simultaneous publication and protection status under bilateral treaties. Furthermore, the UCC also became a useful stepping-stone for developing countries that wished to obtain international copyright protection but did not consider themselves ready to fulfil the higher demands of the Berne Convention. In a world with less international trade and, not least, without satellite television and the internet, such graduated levels of protection were politically acceptable and the UCC certainly facilitated the way into both the Berne Convention and, eventually, the TRIPS Agreement for many countries.

In the future, the UCC will be obsolete, not least because normally it will not be necessary to take it into account when examining the protection status in Berne Union countries of works, first published in a (then) UCC-only country. According to the principle of retrospective protection in Article 18 of the Berne Convention, such works should be protected in Union countries under Berne Convention rules, unless they have fallen into the public domain through the expiry of either the term of protection in the country of origin or an earlier applicable shorter term in the country where protection is claimed.