Lokesh Vyas

During the initial meetings of the Berne Convention, Germany was very vocal about the rights of users and even proposed a separate right to use copyrighted works for education and scientific purposes without author’s consent. This proposal came through a questionnaire proposed by Germany on September 9th, 1884 meeting of the Convention wherein it used the term reciprocal right for using the copyrighted works for education and scientific purposes.[1] This was later included in the draft as Article 8 named “Lawful reproduction of protected works in scientific or educational works”.[2] While discussing this provision, Mr. Reichardt (Private Legation Counsellor, Reporting Counsellor to the Foreign Affairs Department of the German Empire), speaking on behalf of Germany, described this provision as one having universal interest.[3] The committee in this session also acknowledged this [universal] interest and regarded it as a right worth keeping in the general convention and not to be left to the discretion of countries or kept in special conventions.[4] The German delegate was so adamant to keep this provision that he compared the deletion of this provision (i.e. Article 8) with a “desire to hamper the free development of education,”[5] and warned that its deletion from the convention would lead to Germany’s complete exit from the convention.[6] Further, he also considered this provision of Article 8 regarding the use of copyrighted works for education and scientific purposes as one of the universal principles which every country should respect.[7]

Regarding the phrase “reciprocal right” used in the German Questionnaire that paved for Article 8, it seems that there was the intention to establish a separate right of users which carries equal weight and value as that of copyright, unlike exceptions that are understood to have limited meaning and scope.[8] This is also clear from the statement of another German representative (Dr. Dambach) who defined Article 8 as right to use excerpts[9] and French delegate (Mr. Lavollée ) who explicitly noted that Article 8 is not an exception to the rule of protection.[10]

Question 6, German Questionnaire (original Text) (1884)

[THE SECOND MEETING OF THE CONFERENCE FOR THE PROTECTION OF AUTHORS’ RIGHTS SEPTEMBER 9, 1884 (See page 91 here)]

“In line with what has been accepted for practically all literary conventions at present in force, would it not be appropriate to establish, for the whole Union, reciprocal right: 

“(a) To reproduce, without the author’s consent, for scientific or leaching purposes, excerpts or whole sections of a work, subject to certain conditions?

“(b) To publish, under certain conditions, chrestomathies consisting of fragments of works by various authors, without the latter’s consent?”

(c) To reproduce, in the original or in translation, articles excerpted from newspapers or periodical journals. with the exception of serialized novels and articles on science or art?

Article 8, Draft Convention Concerning the Creation of a General Union for the Protection of Authors’ Rights (1884)

[Provided and discussed in FIFTH MEETING OF THE CONFERENCE FOR THE PROTECTION OF AUTHORS’ RIGHTS, SEPTEMBER 17, 1884 (see page 98  here))] 

The publication in any of the countries of the Union of excerpts, fragments, or whole passages of a literary or artistic work that has appeared for the first time in any other country of the Union shall be lawful, provided that the publication is specially designed and adapted for education, or has scientific character.

The reciprocal publication of chrestomathies consisting of fragments of works by various authors shall also be lawful, as shall the insertion in a chrestomathy or in an original work published in one of the countries of the Union of the whole of a short writing published in another country of the Union.

It is understood that the name of the author from whom, or of the source from which, the excerpts, passages, fragments or writings referred to in the above two paragraphs have been borrowed shall always be mentioned.

The insertion of musical compositions in collections intended for schools of music shall be considered unlawful reproduction, however.

Note – This post is a part of my ongoing research work on the History of right to research in Berne Convention which is being done under the the guidance of Prof. Sean Flynn. A big thanks to Prof. Sean Flynn and Luca Schirru for their guidance and help on this issue.

1. Minutes of the Second Meeting of the Conference for the Protection of Authors’ Rights (Sept. 9, 1884) in International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877 at 90-91 (discussing German questionnaire – “In line with what has been accepted for practically all literary conventions at present in force, would it not be appropriate to establish, for the whole Union, the reciprocal right: “(a) To reproduce, without the author’s consent, for scientific or teaching purposes, excerpts or whole sections of a work, subject to certain conditions?”).

2.  Minutes of the Fifth Meeting of the Conference for the Protection of Authors’ Rights (Sept. 17, 1884) in International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877 at 98 (Article 8 of the Draft Convention Concerning the Creation of a General Union for the Protection of Authors’ Rights, reads “The publication in any of the countries of the Union of excerpts, fragments, or whole passages of a literary or artistic work that has appeared for the first time in any other country of the Union shall be lawful, provided that the publication is specially designed and adapted for education, or has scientific character. The reciprocal publication of chrestomathies consisting of fragments of works by various authors shall also be lawful, as shall the insertion in a chrestomathy or in an original work published in one of the countries of the Union of the whole of a short writing published in another country of the Union. It is understood that the name of the author from whom, or of the source from which, the excerpts, passages, fragments or writings referred to in the above two paragraphs have been borrowed shall always be mentioned. The insertion of musical compositions in collections intended for schools of music shall be considered unlawful reproduction, however.” ).

3.  See Minutes of the Fifth Meeting of the Conference for the Protection of Authors’ Rights (Sept. 17, 1884), Draft Convention Concerning the Creation of a General Union for the Protection of Authors Rights, in International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877, at 98 (“Mr. Reichard (from Germany comment) in 1884: “The inclusion of the above provision had been proposed by the German Delegation because there seemed to be a universal interest in certain borrowings from authors to be allowed, within reasonable limits, for educational purposes.” )

4.  See Minutes of the Fifth Meeting of the Conference for the Protection of Authors’ Rights (Sept. 17, 1884), Draft Convention Concerning the Creation of a General Union for the Protection of Authors Rights, in , International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877, at 98 (“The committee had acknowledged the existence of that [universal] interest. It had further considered it preferable to provide for the reproduction right concerned in the General Convention rather than leave it to special conventions and the domestic legislation of each country”)

5.  See Minutes of the Fifth Meeting of the Conference for the Protection of Authors’ Rights (Sept. 17, 1884), Draft Convention Concerning the Creation of a General Union for the Protection of Authors’ Rights, in International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877, at 98 (Mr. Reichard (from Germany comment) in 1884: regarding the usage of copyrighted works for education and scientific purpose, said that “This way of thinking has its own justification in relation to every country unless there is a desire to hamper the free development of education.”)

6.  See Minutes of the Fifth Meeting of the Conference for the Protection of Authors’ Rights (Sept. 17, 1884), Draft Convention Concerning the Creation of a General Union for the Protection of Authors’ Rights, in International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877, at 98 (Mr. Reichard (from Germany comment) in 1884: “I therefore hope that Mr. Lavollée’s intention is merely to state a way of thinking, and not to bring about a vote on Article 8 of the draft, the rejection of which would very probably place the German Government in the position of having to renounce the projected Union completely.”)

7.  See Minutes of the Fifth Meeting of the Conference for the Protection of Authors’ Rights (Sept. 17, 1884), Draft Convention Concerning the Creation of a General Union for the Protection of Authors Rights, in International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877, at 98 (“Mr. Reichard (from Germany comment) in 1884: “This is, therefore, one of the most universal principles, and one whose inclusion in the General Convention Germany will never renounce, because through the application of the laws of the country of origin, provided for in Article 2 of the draft Convention, the deletion of Article 8, which introduces a restriction on copyright, would make all provisions comparable to Article 8 contained in existing conventions void by virtue of the Additional Article.”)

8.  See World Trade Organization, United States—Section 110(5) of the US Copyright Act, WT/DS160/R 6.109 (“In addition, an exception or limitation must be limited in its field of application or exceptional in its scope. In other words, an exception or limitation should be narrow in quantitative as well as a qualitative sense.”); see also, Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715, 736 (2011). (“[This] paradigm views fair use as integral to copyright’s purpose of promoting widespread dissemination of creative expression, not a disfavored exception to copyright holders’ exclusive rights.”); Carys Craig, Globalizing User Rights-Talk: On Copyright Limits and Rhetorical Risks,” American University Int’l L. R., 1, 4 (2017) (“when authorial right is a baseline assumption, copyright exceptions or limitations are inevitably viewed with suspicion, manifesting as prima facie unjust encroachments upon the natural entitlement of the worthy, rights-bearing autho”); see also Dr P. Bernt Hugenholtz, Fierce Creatures Copyright Exemptions: Towards Extinction?, Rights, Limitations and Exceptions: Striking a Proper Balance IFLA/IMPRIMATUR Conference 30-31 October 1997 Amsterdam, The Netherlands IViR University of Amsterdam (“From this legal-technical perspective it immediately becomes clear that copyright exemptions are not, necessarily, exceptions. Notwithstanding the limits imposed upon national legislators by article 9 (2) of the Berne Convention, the principle of narrow construction of copyright exemptions, so often found in copyright treatises and case law, is ill-conceived. Even in those countries where droit d ‘auteur principles of natural law form the solid bedrock of copyright law and jurisprudence, the notion that the law must preserve a balance between protecting the rights of authors and safeguarding fundamental user freedoms is now generally accepted. In defining this balance, copyright limitations are mere (but essential) instruments, not exceptions to a rule”); c.f. P. Bernt Hugenholtz & Ruth L. Okediji, Conceiving An International Instrument On Limitations And Exceptions To Copyright, Final Report, IViR, University of Amsterdam snf University of Minnesota (2008) (“Surely, the term “limitations and exceptions” – and by implication the three-step test – cannot apply to exercises of State discretion that are done pursuant to public policy external to copyright issues, such as freedom of expression and competition law, since this would imply a hierarchy of copyright over other domains of law, which would effectively render the copyright system immune against such external sources. However, as case law from the highest courts reveals, such a hierarchy does not exist.”); accord Myra Tawfik, International copyright law and fair dealing as a user right, In:Copyright bulletin, Apr. – June 2005, 15 (“The concept of ‘fair dealing’ as a ‘user right’ challenges the prevailing wisdom that copyright is to inure to the benefit of rights-holders exclusively and is a fundamental part of a growing awareness of some of the harms that may result from very high standards of copyright protection.”).

9.  See Minutes of the Third Meeting of the Conference for the Protection of Authors’ Rights (Sept. 8, 1885), Draft Convention Concerning the Creation of a General Union for the Protection of Authors Rights, in , International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877, at 114 (“Dr. Dambach (from Germany) in 1885: pointed out that the case law and legislation of the various countries could vary, and that consequently it seemed preferable to retain Article 8 and to specify in the Convention itself the right to make quotations, etc.”)

10.  See Minutes of the Fifth Meeting of the Conference for the Protection of Authors’ Rights (Sept. 17, 1884), Draft Convention Concerning the Creation of a General Union for the Protection of Authors Rights, in , International Bureau of Intellectual Property, The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, Reports of the Various Diplomatic Conferences, WIPO Publication No. 877, at 98 (Mr. Lavollée (from France) 9n 1884: According to him, Article 8 should not be regarded as an exception to the rule of protection, but rather as a specific provision which, if it remained part of the specific conventions while being excluded from the General Convention, should be regarded not as contrary to the latter Convention, but as relating to matters other than those governed by it.”)