This blogger must confess that, while he enjoys the sensation of having all the law at his fingertips and often in his brain, there are times when he quite forgets all about Article 18 of the Berne Convention. In case you have forgotten all about it too, here it is:
This has all suddenly become quite topical after WIPO released Berne Notification No. 261 (better known as "Berne Convention for the Protection of Literary and Artistic Works
Notification by the Republic of Uzbekistan: Withdrawal of Declaration Concerning Article 18 of the Paris Act (1971)"). Back in 2005, when Uzbekistan deposited its instrument of accession to the Berne Convention, it also made a declaration according to which the effects of that Convention would not extend to works which, at the date of entry into force of the Convention in Uzbekistan, were already in the public domain there.
However, on 8 January of this year, that declaration was withdrawn.
Works Existing on Convention's Entry Into Force:
1. Protectable where protection not yet expired in country of origin;
2. Non-protectable where protection already expired in country where it is claimed;
3. Application of these principles; 4. Special cases
(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.
(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.
(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle.
(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.
The reservation is actually quite interesting, notably because it is not permitted under the Convention. Nevertheless, similar reservations are still maintained by Moldova, the Russian Federation and Ukraine. What is permitted under Art 18 is to make transitory provisions when countries join the Convention or new Acts thereof, but not to refuse in general protection of works which were created before the Convention, or the Act in question, entered into force for the given country. Apart from such transitory provisions, older works may only be refused retrospective protection in accordance with Art 18 if they have fallen into the public domain due to the expiry of the term of protection, not if they have been unprotected for other reasons.
What is the impact of this change? What wii be protected now that wasn't in the past? And are works that were in the public domain now going to be protected?
What will actually be protected depends in the end on domestic Uzbek law. What has happened is that the country internationally has recognized its obligation to protect foreign works that, at the time when the country joined the Berne Convention, were in the public domain in Uzbekistan for other reasons than the expiry of the term of protection. Such reasons could, for example, be lack of compliance with formalities or a former catalogue of protected works that was not as comprehensive as that of the Berne Convention.
Just an additional remark. The 2006 law published on the WIPO web site is unclear, Article 70 only contains explicit rules regarding older contracts of exploitation. However, Article 2 gives precedence to international agreements, and that might be understood as meaning that the works which I referred to in my earlier comment henceforth will be covered by the protection. For additional information you'd better consult an expert in Uzbek law.
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