Literature and International Copyright after the Berne Convention (1886)
Authors: Nyqvist Sanna 
Published: May 2018

The gradual development of national copyright laws during the 18th and 19th centuries resulted in quite different and culture-specific understandings of the nature and scope of protection provided for literary and artistic works. The lack of international standards of regulation meant that literary works could be freely reprinted, translated, and appropriated abroad. As a result of the increasing internationalization of literature, bestselling authors of the 19th century began to call for a universal copyright. Their activism proved an important catalyst of the first international copyright treaty, the Berne Convention, signed in 1886 by ten nations.

The Berne Convention has since been revised many times and is currently ratified by over 170 signatories. In its current form, it grants relatively strong rights to authors who produce works that can be categorized as “originals.” It determines the minimum standards of protection which bind the national legislation of its member states, for instance by setting the minimum length of copyright protection at fifty years from the death of the author. The development of international copyright agreements since the latter half of the 20th century has resulted in a network of mutually reinforcing treaties and an increased awareness and control of copyrights on a global scale. At the same time, such treaties and the national laws they govern can offer only partial solutions to the multiple conflicts of interest relating to the uses of literary works beyond their countries of origin.

The main concerns of the 19th-century authors who lobbied for universal copyright are still relevant today, albeit in somewhat different forms. With the advances of technology that allow for effortless storing and distribution of works in digital form, and given the economic gap between content-producing industrialized countries and the less-developed countries that use that content, book piracy still exists and is often a symptom of a dysfunctional or exclusive local market environment. In addition to the abolition of piracy, another core concern for the Berne Convention was the regulation of translation rights. The treaty divides the copyright in translated works between authors of originals and translators, which challenges the notion of originality as the criterion for protection since translations are by necessity derivative. The division of authors into two groups meriting different types of protection is further complicated by the rise of the so-called “born-translated literature” which effectively blurs the distinction between originals and translations. The international framework of copyright has harmonized many aspects of copyright, yet left others unregulated: appropriations, such as parody, have proven problematic in an international setting due to differences in how national laws justify the existence of derivative and transformative works.

International copyright thus remains an oxymoron: it is promulgated in and through national laws, and the disputes are settled in national courts although literature, especially translated literature, has multiple countries of origin and is increasingly distributed by international booksellers to a potentially global audience.