As my new Web site, www.patenting-art.com, documents, there is a growing amount of art being protected by utility patents around the world. The scope of art patenting will expand in the decades to come, as scientists and engineers continue their takeover of the production of art and entertainment.
Given that the 1971 Berne Convention exists to help artists protect their works, and since the Berne Convention is silent about utility patents, it is the obligation of the UN/WIPO to start proceedings to modify the Berne Convention to more accurately reflect the use of utility patents to protect art. WIPO is currently discussing global patent issues with its Substantive Patent Law Treaty (SPLT) discussions, so that the SPLT could expand its agenda to include revising Berne.
The nature of the production of art and entertainment is undergoing significant and disruptive changes. It is time that WIPO started focusing on the harmonization of patent AND copyright laws, whatever complexities this adds to global discussions. These production changes need their legal protection, and the current patent and copyright treaties are increasingly archaic.
What follows is a discussion of why it is time to rewrite the Berne Convention.
The Berne Convention is presumed to be the treaty that helps artists protect their works, using copyright. But the Convention is fairly vague when it comes to discussing copyrights. The Convention starts out as follows:
Berne Convention for the Protection of Literary and Artistic Works
(Paris Act of July 24, 1971, as amended on September 28, 1979)
The countries of the Union, being equally animated by the desire
to protect, in as effective and uniform a manner as possible, the
rights of authors in their literary and artistic works,
Recognizing the importance of the work of the Revision Conference
held at Stockholm in 1967,
Have resolved to revise the Act adopted by the Stockholm Conference,
while maintaining without change Articles 1 to 20 and 22 to 26 of
that Act.
Consequently, the undersigned Plenipotentiaries, having presented
their full powers, recognized as in good and due form, have agreed
as follows:
Article 1
[Establishment of a Union]
The countries to which this Convention applies constitute a Union
for the protection of the rights of authors in their literary and
artistic works.
Immediately one notices that the word "copyright" appears nowhere in the preamble and beginning of the text, unlike say the PATENT Cooperation Treaty, or the WIPO COPYRIGHT Treaty. That is, at least in English. "Rights of author", in the original French of the treaty, corresponds in French mostly to copyright, but substituting in "copyright" into the English text doesn't parse, assuming that is what is meant. Which is questionable, since the word "copyright" is used a few times in the body of the Convention. In short, the wording of Berne is vague. Especially for the English text, that all of art is patentable as well as copyrightable, is consistent with this introductory text, especially if one modified "authors" to "authors and inventors".
Article 2, section (1), lists the art to be protected, again without mentioning "copyright":
Article 2
(1) The expression "literary and artistic works" shall include every
production in the literary, scientific and artistic domain, whatever
may be the mode or form of its expression, such as books, pamphlets
and other writings; lectures, addresses, sermons and other works of
the same nature; dramatic or dramatico-musical works; choreographic
works and entertainments in dumb show; musical compositions with or
without words; cinematographic works to which are assimilated works
expressed by a process analogous to cinematography; works of drawing,
painting, architecture, sculpture, engraving and lithography;
photographic works to which are assimilated works expressed by a
process analogous to photography; works of applied art; illustrations,
maps, plans, sketches and three-dimensional works relative to
geography, topography, architecture or science.
You will note that by the end of this Section, "copyright" is still not explicitly mentioned. Indeed, one could view a manufactured invention as a "scientific work's" "mode or form of its expression", the expression being the patent specification, the form being its production. To this point then, the Treaty is consistent with using patents to protect art. Indeed, many of the works of art listed in Article 2 are already being patented. A database of such patents is available at http://www.patenting-art.com/database/dbase1-e.htm.
(2) It shall, however, be a matter for legislation in the countries
of the Union to prescribe that works in general or any specified
categories of works shall not be protected unless they have been
fixed in some material form.
While "fixed" is copyright language, it could also mean "concrete and tangible" which is patent language. Again, this clause can be made invariant with respect to patents and copyrights.
(3) Translations, adaptations, arrangements of music and other
alterations of a literary or artistic work shall be protected as
original works without prejudice to the copyright in the original
work.
Finally, the word "copyright" enters the treaty. But it is used only in a relative way. All this clause says is that an adaptation is as copyrightable as the original work, and implies that the adaptation will probably have lesser scope in light of the original work. Again, this Section is compatible with patenting original works of art, and allowing the adaptations to be protected by patents as well. This clause does not mandate that originals works of art have to be protected by copyright. For example, one could expand "copyright" in this section to "copyright and/or patent", and be compatible with all existing IP laws.
(4) It shall be a matter for legislation in the countries of the
Union to determine the protection to be granted to official texts
of a legislative, administrative and legal nature, and to official
translations of such texts.
(8) The protection of this Convention shall not apply to news of the
day or to miscellaneous facts having the character of mere items
of press information.
Again, nothing precludes these considerations from applying to patents.
(5) Collections of literary or artistic works such as encyclopaedias
and anthologies which, by reason of the selection and arrangement
of their contents, constitute intellectual creations shall be
protected as such, without prejudice to the copyright in each of
the works forming part of such collections.
Again, the same use of "copyright" in clause (3), where one can expand "copyright" to "copyright and/or patent".
(6) The works mentioned in this Article shall enjoy protection in
all countries of the Union. This protection shall operate for the
benefit of the author and his successors in title.
One can expand the word "author" to read "author or inventor", and the result is consistent with current IP laws. While we are making changes, how about expanding "his" to "his or her"?
(7) Subject to the provisions of Article 7(4) of this Convention,
it shall be a matter for legislation in the countries of the Union
to determine the extent of the application of their laws to works
of applied art and industrial designs and models, as well as the
conditions under which such works, designs and models shall be
protected. Works protected in the country of origin solely as
designs and models shall be entitled in another country of the
Union only to such special protection as is granted in that country
to designs and models; however, if no such special protection is
granted in that country, such works shall be protected as artistic
works.
Article 7(4) It shall be a matter for legislation in the countries
of the Union to determine the term of protection of photographic
works and that of works of applied art in so far as they are
protected as artistic works; however, this term shall last at least
until the end of a period of twenty-five years from the making of
such a work.
Finally, a bit of recognition of patents. That is, countries can have design patents and have such patents viewed in other countries as a copyright if the other country doesn't have a design patent. Not bad, but there is no recognition here of the growing UTILITY patenting of art.
There are a few more uses of the word "copyright" in the rest of the treaty, but the uses are no more definitive than the uses listed above. And there is no explicit use of the word "patent" anywhere in the treaty. Berne suggests all of this, but in a vague way, even though all places where "copyright" is used could equally use "copyright and/or patent".
For software people, this lack of specific guidance is important. The WIPO Copyright and TRIPS treaties include the following language, supposedly to justify software copyright:
Computer programs, whether in source or object code, shall be
protected as literary works under the Berne Convention.
But the Berne Convention doesn't explicitly say how literary works are to be protected, so this language means nothing (beyond the fact that from the point of view of formal language theory, this sentence is very vague). Additionally, subjecting software to copyright laws via Berne and other treaties and national laws has been an intellectual disaster. The problem is the inability of courts and lawyers to figure out how to apply the idea/expression dichotomy to software. An extensive review of thirty years of this confusion is presented in a paper titled "Deconstructing software copyright: 30 years of bad logic", available at: http://www.patenting-art.com/copyprob/softcopy.htm.
So, if the world is going to have some general global treaty that gives protection to artists (beyond specific treaties such as copyright or patent treaties), for this global treaty to be honest and relevant, it has to have language recognizing the utility patenting of art. The Berne Convention does not do so, and should be revised as soon as possible by WIPO.
This assumes that Berne should remain in existence. Prof. Alan Story, of the University of Kent School of Law, proposes that Berne be abolished. In a paper titled "Burn Berne: Why the Leading International Copyright Convention must be Repealed" (40 Hous. L. Rev. 763 [2003]), he concludes:
Up until this point in this Essay, most of the emphasis has been on attempting to explain and theorise why the Berne Convention and its presumptions not only do not assist, but directly hinder the access to information and knowledge needs of the countries of the South. Moreover, the Berne ideology reinforces existing global economic inequalities. ....
I have argued here that the Berne Convention should be repealed as it does not and, in fact, cannot serve the interests of more than three-quarters of the world's population. Any radical reforms, such as abolition of the national treatment requirement or establishing a maximum standard of copyright protection, would so substantially gut Berne's foundational principles that it hardly seems worth the effort to attempt to pour a wholly new "wine" into an old Berne "bottle". ....
Extending the geographical scope and parameters of copyright protection to countries of the South, as TRIPS intends through the much stronger global enforcement of Berne, will - to use the predominant intellectual property metaphor Gerhart uses - tip the balance too much in favour of protection, will lead to over-protectionism, will give too great an incentive to creators, and will unbalance the U.S. copyright system. In the present period and more importantly, for many years into the future, the owners of U.S. copyright-protected works stand to make millions, indeed likely billions, of extra dollars in profits as a result of the global spread of the copyright system to the countries of the South.
Complete repealing of Berne is too much of an economic disruption. Shifting as much protection of art and entertainment to the patent world has more economic benefits, is already occurring, and is either compatible with the repeal of Berne or with the modification of Berne. But the copyright system can no longer sticks its head in the ground and pretend not only that the patent system does not exist but also that the patent system increasingly is overlapping the entire copyright world. Time for copyright lawyers to learn science and engineering as science and engineering take over the production of art and entertainment.