France , China and the Berne Convention
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This is a presentation that I made for the Seminar on the Berne convention regarding the French and Chinese approaches to the Berne convention . If France loves it and makes its own laws to bring it into existence , China cant stand it and render it self executing in a smart and admirable way .
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France , China and the Berne Convention
- 2. The French Accord The Chinese Acquiesce Why you should Care
- 3. Influential in Berne Convention The Approach to Moral Rights The Additions Creative work = Creators Personality Art. L112-2 List
- 4. June 1,1991 : First copyright law Ambassador Carla Hills Demands Sanctions Berne Self Executing Illogical statement ? Reality sings a different song
- 5. In France you remain the final authority You can issue retractions China may grant foreigners more protection But then again :
Editor's Notes
- There are two moral rights in Article 6bis of the Berne Convention:1. the right of attribution: the true author has the right to have his/her name on the work, andnon-authors are prevented from having their names attached to the author’s work.In French law, this right is called “droit à la paternité”. Sarraute1 has traced the originback to a French judicial decision in the year 1837. This rule of law was first codified inFrance2 in Article 6 of the French Law on Literary and Artistic Property No. 57-298 of11 March 1957. The current French statute is Article L121-1 of the French IntellectualProperty Code, Law No. 92-597 of 3 July 1992.2. the right of integrity: distortion, mutilation, or other modification that would prejudice theauthor’s honor or reputation is not permitted.In French law, this right is called “droit au respect de l’oeuvre”. Article 6 of the FrenchLaw No. 57-298 of 11 March 1957.The following moral rights are not mentioned in the Berne Convention, but are part of the nationallaw of France and some other countries:3. the right of disclosure: the author has the final decision on when and where to publish. Thisright includes the right to withhold the work if it is not finished, or not ready for publication,according to the author’s decision.In French law, called “droit de divulgation”. Article L121-2 of the French IntellectualProperty Code, Law No. 92-597 of 3 July 1992. Supersedes Article 19 of the French LawNo. 57-298 of 11 March 1957.4. the right to withdraw or retract: when an author’s views change, the author may purchaseat wholesale price all of the remaining copies of the author’s work, then prevent printing ofmore copies.In French law, this right is called “droit de retraitou de repentir”. Article L121-4 of theFrench Intellectual Property Code, Law No. 92-597 of 3 July 1992. Supersedes Article 32 ofthe French Law No. 57-298 of 11 March 1957. Perhaps because the author must reimbursethe publisher for costs, this right of withdrawal is rarely used in France.35. the right to reply to criticism: For example, French law gives the author a right to reply to acritic and to have the reply published in the same place as the critic’s expression.6. The publisher must not modify the author’s work, except with the author’s written consent.Article 56 of French Law No. 57-298 of 11 Mar 1957.additional featuresEach of these moral rights of the author are perpetual, inalienable, and descend to the heirs of theauthor. If the author transfers the economic rights (i.e., copyright) to another person or company,the author always retains the moral rights. Articles 6, 19, 29 of French Law No. 57-298 of11 March 1957; Article 6bis of the Berne Convention.Moral rights arise from the French concept that a creative work contains the personality of itscreator or author. Copyright is a property right, while the author’s moral right is an extension ofthe author’s character and personality. Personality is not transferable, which is why the authoralways retains the moral rights even after the author sells or transfers the copyright to anotherperson or company. From this concept, it follows that only human-authors can claim moral rights.A corporation may be the legal author under a work-for-hire agreement, but a corporation neverhas moral rights.Hence there must be a human intellectual contribution to the work. A list of types of work which are protected is given in Art. L112-2: this list (taken from the Berne Convention) is not limitative.
- Stephanie L. SgambatiOn June 1, 1991, the first copyright law in the history of thePeople's Republic of China entered into effect.' Given thesocialist principles of traditional communist ideology,2 this was alandmark development in copyright protection in China. Yet, tothe disappointment of United States industry and the copyright bar,the new law and implementing regulations fell short of BerneConvention standards for intellectual property protection andoffered no solution to the rampant piracy of U.S. works in China.Ambassador Carla Hillsdemandingsanctions against China under U.S. trade laws.'Recognizing the significance of trade losses in China due to piracyof U.S. intellectual property,5 the USTR announced formalsanctions against China on December 2, 1991, to take effect onJanuary 17, 1992.6 Just hours before the sanctions were implemented,the U.S. and China signed a Memorandum of Understanding7("MOU") in which China committed to join the BerneConvention by October 15, 1992China has chosen the third protection option, claiming that theBerne Convention is self-executing." This means that the treatywill become part of China's domestic law and confer rights directlyto individuals, who may bring an action based on the Conventionitself to enforce them.'73 Chinese officials assert that incompatibleprovisions of China's domestic law will be superseded by directimplementation of the terms of the Convention.This position is less thansatisfactory for three reasons. First, many provisions of theConvention are clearly executor and require further measures innational legislation for their implementations Second, even theself-executing provisions of the Convention do not accord completeprotection to works, as the scope of national treatment is limited.Third, direct implementation of the Convention is unrealistic,as it will provide a higher level of protection to foreigners thanto Chinese nationalsReality sings a different song Two recent bite victims were the major motion picture “The Touch,” whose ticket sales plummeted when black market copies of the movie became ubiquitously available four days after its opening,5 and the latest album from Yi RenZhiZao, whose CD now commands a staggeringly paltry 1.4% market share after black market copies became available before legitimate copies even hit the music stores