Different interpretations of the Berne Convention

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Article 5 of the Berne Convention stipulates that each signatory state must grant the nationals of other member states the same rights within its territory as its own nationals (Article 5.1) and that this protection is governed exclusively by the law of the country for which the protection is being claimed regardless of any existing protection in the country of origin of the work (Article 5.2). This clause has caused some disagreement within the legal doctrine.

  • Some consider that it reinforces the lex loci protectionis principle for copyrights and leads to the application of the copyright law of the country where the work is being used (and for which the protection is being claimed).
  • Whereas for others within the doctrine, it constitutes a clause containing conditions for foreigners and should lead to the following, in particular:
    • The application of the principle of reciprocity, whereby works created in country A by someone of nationality B will be protected by copyright if country B protects the works of nationals from country A within its own territory.
    • The application of national private international law: in the case of a conflict of law in territory A, A will apply its own private international law, which will lead to the application of the law of the country of origin of the work or of that of country A.

The legislator and the judge of each country are able to decide in favour of one position or the other.

One example of the influence of international treaties on the question of applicable law is shown in the two judgements made on 10 April 2013 (appeal no. 11-12.508 and 11-12.509) by the French Court of Cassation: A reporter/cameraman was employed by an American (US) company in 1978 and then given a role in its French subsidiary in 1993. Following his dismissal in 2004, he filed a claim against his employer citing an infringement of his copyrights. The lower courts’ interpretation of international private law was that it leads to the application of the law of the country of origin of the work, i.e. the US. According to US law, the copyrights of a work created by an employee belong to the employer, which meant that the cameraman was not able to file a claim. The Court of Cassation, however, judged that Article 5.2 of the Berne Convention also has some bearing on the creation of the work, so national law (i.e. French law) had to apply in this dispute. Since French copyright law does not stipulate that the rights automatically go to the employer for a work created by an employee as part of their paid duties, the Court of Cassation eventually ruled in favour of the cameraman.