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RIDA 200 | 04-2004

Doctrine

"The future of the Berne Convention in intra-community relations"

MALAN, Alexandre

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For some years now, the Berne Convention has been confronted with the European Community principles of equality of treatment and free movement. Although the Convention is founded on the principle of assimilating Union authors to national ones, it refers to the law of the country of origin of the work in certain cases, notably when dealing with the term of protection and in connection with the “unity of art” rule in the field of applied art and design (Articles 7.1 and 7.8, Article 2.7). By laying down a rule known as that of the “comparison of terms”, such a reference is discriminatory for foreign authors in that the end result is to deprive them of the benefit of the possibly more generous law of the country where protection is claimed. The article analyses this issue in the light of the recent case law of the European Court of Justice and the French Court of Cassation. It also considers other contradictions between Community law and the Berne Convention to raise more generally the question of this instrument’s residual application in intra-Community relations.