Readers will recall that last month Swaraj announced our IP History series which was followed by Shivam’s incisive posts on India’s entanglement with Berne Convention and the Stockholm Conference. We are now very pleased to bring an intellectually delightful stream of consciousness piece by Achille Forler, triggered in response to our IP History posts. A longtime friend of the blog, Achille is currently serving as an Advisor to the Board of the Indian Performing Right Society. He is also the founder of www.musicurator.com and www.SyncMama.com. With over 35 years of experience in the creative industries, Achille pioneered music publishing in India with Deep Emotions Publishing in 1996 and has also served as a public servant in France. He was an elected Member to the Assembly of the French Expatriates for 16 years as well as was a member of the Committee on Education, Culture and Communication. His previous posts on the blog can be accessed here and here. Views expressed are those of the author’s.

The Wonder That is Berne

Achille Forler

I met Shamnad when he worked at Anand & Anand, the nursery of today’s Who’s Who in Indian IP. Being in the room when Pravin Anand was in full flight felt like standing on Everest. Shamnad was undoubtedly one of his favorites: he had an exceptionally fine and quick intellect, an innocence about him, and a heart in the right place. He took no offense when I teased him about the lack of an Indian contribution to copyright. We esteemed each other, had many long conversations, and I miss him.

People talk about his fact-based approach. That’s right, because he focused more on patents — their ever-greening, their negative social impact — where facts are your primary weapons. Although clubbed under IP, copyright is a world away from patents and trademarks, and when you talk about history, facts need to be placed in their context and perspective.

Let’s dive in.

Copyright and Author’s Rights

The publishers wrote the history of Anglo-American copyright. Some authors, like Defoe, Dickens, or Wordsworth, were vocal about their rights, but they made no legal impact. The Statute of Anne in 1710 pushed the author center stage only to justify that the stage belonged to the bookseller.

The long Battle of the Booksellers was about perpetual ownership. The London publishers’ claim was derailed in extremis by an incredible twist of fate (see Mark Rose, Authors and Owners, Appendix B) i.e. Donaldson v. Becket (1774), (see here for the minutes of the proceeding) which was a headline act throughout Europe.

By voting to limit the period of copyright, the House of Lords created the Public Domain.

The decisive events in London from 1710 to 1774 determined the course of modern Anglo-American copyright. They influenced the American Copyright Statute of 1790. In construing the Federal Act in 1834, the United States Supreme Court followed the decision made by the House of Lords sixty years earlier in Donaldson v. Becket, thus confirming the English line of descent for American copyright law.

Property is not an inalienable right in the American Declaration of Independence. The society, including some Founding Fathers, practiced slavery, with colonists forcibly taking over indigenous peoples’ territory. It was impossible to deny that indigenous people were human beings protected by natural law. This created a practical dilemma: how to simultaneously sanctify private property in the Constitution, as in French law, and dispossess human beings of their property?

If the United States did not sign the Berne Convention until 1989, it was not due to some hidden colonial purpose but to issues with its legislation and copyright policies. Every music publisher knows that ‘Anglo-American repertoire’ follows different rules. Even copyright societies work differently in the US.

The system of privileges had created the same imbalance between publishers on the Continent, but there the authors entered the battlefield and produced a different outcome. Why?

The more straightforward explanation is that the two legal systems are different. In the Common Law system, authors needed more resources and the organization to fight it out with the publishers over 60 years for an uncertain outcome. As one French critic put it, “When the law is silent, the judiciary is divided.”

On the Continent, Diderot, Kant, and Schiller built the philosophical foundations of modern copyright. Others like Beaumarchais, Lamartine, de Vigny, or Hugo became lawmakers.

“The most sacred, legitimate, and unassailable, and if I may put it this way, the most personal of all properties, is the work, the expression of a writer’s thought; yet it is a property of an entirely different kind from other properties.

When an author has delivered his work to the public, it is in the hands of everyone; all educated men know it, they have seized upon the beauties it contains, and they have entrusted to their memory its happiest features. However, as it is only right that men who cultivate the domain of thought should derive some fruit from their work, it is necessary that throughout their lives and for a few years after their death, no one should be able, without their consent, to dispose of the product of their genius. But, after the fixed period, public ownership must begin, and everyone must be able to print and publish the works that have contributed to enlightening the human mind. […]

Actors are to playwrights what printers and booksellers are to writers; both transmit to the public the thoughts of men of genius, with the difference that actors are limited to the confines of the theatre on which they perform. The others have only the world as their limits.”

(Le Chapelier Report to Parliament, 1791)

This conflict between authors and the media led to the creation of the first not-for-profit copyright societies: for dramatic works in 1777 and musical works in 1850. These two societies, SACD and SACEM, are still active today and leaders in their respective fields.

The map is there; we can now follow the road to Berne.

The Road to Berne Did Not Pass Through London

Playwriting was no longer about pleasing a patron or mediating on behalf of a deity; it was about passing on to the public the creations of autonomous individuals who had risen to the level of artists. And they did so by breaking the monopoly of the “media,” the actors and theatre owners.

When they challenged the monopoly of producers and actors, French playwrights and German authors asserted that their works were intended for the public even before their personal property.

This is crucial for understanding the Berne Convention: modern copyright was developed in response to the monopoly of theaters, the “media” of the works, to make them widely available to the public. In doing so, they successfully separated the work from its performance and, later, its reproduction.

We talk about authors when we talk about copyright. If we ask what an author is, we are really asking what a human being is. The Enlightenment has given its answer. Read Kant: “What is an author?” Or Schiller: “What is a book?” We could also think of Indian literature.

The Vedic poets, kavi, believed that the Veda could be fully comprehended only by correct pronunciation, akshara shuddha, correct duration, mâtra shuddha, and correct intonation, swara shuddha. Auxiliary disciplines such as phonetics, grammar, etymology, prosody, and a sophisticated set of recitation norms ensured that Vedic texts were passed down intact — virum volitare per ora / flying through the mouths of men (Virgil, Georgics, III, 9) — in their immaterial, shruti, form until today.

Ancient Indian culture recognized two fundamental ideas of modern copyright: that a literary or musical work has an original immaterial form distinct from its material reproduction, the manuscript, and that the author enjoys a sovereign moral claim.

Comparative studies of the Vedic philosophy of self and the moral right of the author, the Berne Convention, and IPRS v. Eastern India Motion Pictures 1977 AIR 1443, 1977 SCR (3) 206, or the Copyright Act, would be a more rewarding historical approach than the tu tu main main (squabble) battle of ‘facts.’

The Berne Convention Ménage à Trois

As early as 1841, the French poet Lamartine called in the Chamber of Deputies to create “an international law accepted from country to country, even in the absence of any reciprocity.”

Throughout the nineteenth century, critics of this generous attitude contended that giving without receiving was an act of liberalism that exceeded the bounds of liberalism. Today, decolonial critics see this universalism as an imperialist project when it was the essence of the Enlightenment.

In his presidential address to the International Literary Congress on 17 June 1878, Victor Hugo said:

“It is not for any personal interest that you are gathered here; it is for the universal good. What is literature? It is the setting in motion of the human spirit. […] Literary property is of public interest. All the old monarchical legislations denied and still deny literary property. For what purpose? To enslave. A writer who owns property is a free writer. To take away his property is to take away his independence.

Hence this singular sophism, which would be childish if it weren’t treacherous: thought belongs to everyone, therefore it cannot be property, therefore literary property does not exist! This is a strange confusion. First, it confuses the faculty of thinking, which is general, with thought, which is individual; thought is the self. Then, it confuses thought, an abstract thing, with the book, a material thing. The writer’s thought, as a thought, escapes any hand that might try to seize it; it flies from soul to soul; it has that gift and strength. But the book is distinct from thought; as a book, it is seizable, so seizable that it is sometimes seized!

The book is the product of printing, belongs to industry, and, in all its forms, is the driving force behind a vast commercial movement. It is sold and bought. It is property, value created and not acquired, wealth the writer adds to the national wealth.”

This Congress led to the Association Littéraire et Artistique Internationale (ALAI), founded ten days later. The ALAI organized a meeting of writers, artists, and publishers in Berne in 1883, leading to the first diplomatic convention on intellectual property, the Berne Convention of 9 September 1886.

Victor Hugo died in 1885, but his admirable speech provides the keys to the principles at the origin of the Berne Convention, which has nothing to do with piracy:

• The freedom and absolute right of the author over his work during the creative process and up to its communication to the public.
• The author’s right to exploit his work freely and to receive the fruits thereof.
• The public’s right to access the work: once published, the work is assigned to the public.

Literary property is declared to be of general interest. An author is a private person in charge of this public interest and, as such, receives a royalty for the exploitation of his intellectual production.

Literary and artistic “property” is a personal prerogative within a mechanism of obligations between these two parties – author and public – regulated by the State for reasons of general interest linked to creation and culture.

Theatres, publishers, and producers act like concessionaires to exploit an author’s works. As such, they are accountable and only use their rights to the extent that they provide the author with new fertility and the public with new works.

Studying the relationship between public law and copyright law, which ignores it, would be interesting. Public interest is evident in copyright law; however, it is pursued not only by a private individual but also by a natural person. It is unheard of in public law for the public interest to be bound and controlled by an individual’s free will.

Conclusion

We have not made any real progress since Berne, either in content or form. The debate about creativity remains within the same terms, a sort of ménage à trois between:

• The right of the public to access culture.
• The authors’ legitimate economic rights and the authenticity of their works (moral rights).
• The interests of the concessionaires who are commercially exploiting the works.

These three entities agree, compete, or clash as political, technological, and economic circumstances dictate —the irruption of digital technology, the royalty imbalance in streaming services, the issue of buyouts, not to mention judicial blunders — but always to ensure the perpetual, vital and fruitful exchange between the authors and the public characterized by copyright law.

Posterity will forgive the nineteenth century because it produced the Berne Convention.

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