BERNE CONVENTION: Berne Convention Protects Writers

Creativity is the most important ingredient in becoming a successful songwriter, but these days it isn’t the only characteristic necessary to make songwriting a viable career. Business savvy and a thorough understanding of the laws that protect the creative community are essentials for a writer to make a living.Creativity is the most important ingredient in becoming a successful songwriter, but these days it isn’t the only characteristic necessary to make songwriting a viable career. Business savvy and a thorough understanding of the laws that protect the creative community are essentials for a writer to make a living.

Knowing about copyright laws and their impact on the song publishing industry is a must. The revision of U.S. copyright laws in 1976 totally overhauled the laws in this nation. However, copyright laws vary dramatically from country to country. If you’re lucky enough to have a song that becomes a hit in another country, you understandably want that work to be protected in foreign markets as well.
That’s where the Berne Convention (as in Berne, Switzerland) comes in. To explain it and its impact on songwriters, American Songwriter recently spoke with Nashville-based intellectual attorney Brian L. Smith.

American Songwriter: Do copyright laws or their equivalent exist in foreign countries?

Brian Smith: Yes, in most countries. In fact, the last major country to enact copyright laws was China. That occurred this year.

AS: How do you protect songs released in another country?

BS: There are certain treaties, international agreements between countries in which countries agree to cooperate on copyright, trademark, and patent protection. The major copyright treaty is the Berne Convention.

AS: What exactly is the Berne Convention?

BS: It’s been around in one form or another since 1886, but the U.S. didn’t become a signatory to it and did not implement it until 1989. The essence of the Berne Convention is this: A copyright owner or creator who is a citizen or a signatory country is afforded the rights of a citizen or another signatory country. What does that mean? It means that if you’re copyright rights are violated in any other signatory country’s jurisdiction, then you have the copyright rights given by that country. For example, I’m a U.S. citizen and one of my songs is on a pirated record sold without my permission in France. I’ve got to go to France to stop the infringement. That means I’m going to have to use the French courts and due to the Berne Convention I will have the same rights under French law as a French citizen would. Now that doesn’t mean I go to France and say ‘I’m American and so American copyright laws apply.’ Wrong. Unless there is a contract between the parties that says United States law will control, or there is a substantial contract with the U.S., then an infringement in France will probably be dealt with under French law.

AS: How many countries are part of the Berne Convention?
BS: Seventy-nine.

AS: What process made the United States a part of the Berne Convention?

BS: In order for the U.S. to be a member of the Berne Convention, the treaty had to be ratified and then legislation passed to implement the treaty. Thus, the Berne Implementation Act went into effect in 1989. There needs to be some uniformity in copyright laws. That’s very difficult with 79 countries, but to be a member you have to be uniform on a couple of small points. The Berne Implementation Act revised numerous provisions of U.S. copyright to comply with the requirements of being in the Berne Convention. That’s been signed into law.

AS: Prior to the U.S. becoming part of the Berne Convention was there anything publishers and songwriters could do to protect foreign works?

BS: Yes, because first the U.S. has been a party to other conventions for many years. Also the U.S. is party to several lateral treaties with other countries, but it you were a publisher and you wanted to avail yourself of the Berne Convention there was a thing called “simultaneous first publication.” If the work was first published in a country that was a signatory to the Berne Convention, then the work could get the benefits of this. For example, publishers used to get a Canadian distributor to release a record in Canada on the same day a record was released in the U.S. and that met the requirement of a first publication in a Berne Convention country. Now that U.S. adheres to Berne, “simultaneous first publication” is no longer needed.

AS: What is the harsher laws that exists in some foreign countries that causes problems for writers?

BS: Certain countries still have laws that say publications without notice injects a work into the public domain. If you release a song and the copyright notices aren’t printed on it, you lose your rights. That’s a very harsh result and the U.S. Copyright Revision Act of 1976 deleted that harsh requirement, but there are still countries where that is the law.

AS: What’s the best way for a songwriter to protect their rights in foreign countries?

BS: They and/or their publisher needs to get what’s called a “sub-publishing deal.” This is the way it works, unless you’re dealing with one of the majors that has subsidiaries worldwide, if you’re going to publish a song overseas you cut a sub-publishing deal with a local publisher in that country and he’s basically your best representative for publishing the song, collecting royalties and selling mechanical and other licenses in that country. Just as in choosing a U.S. publisher, a foreign sub-publisher should be carefully selected. You’ll have to really trust them to do their job, unless you have the money to visit them and monitor their activities.