Berne Convention

“ Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. ”

“ Nevertheless, there are operative variations between the concepts of "U.S. works" and "country of origin". The definition of "country of origin" in the Berne Convention has a narrowing or pinpointing function – it seeks to determine, of all the countries in the world, the country from which a published work can be considered to have originated. The definition of "United States work" need not be so comprehensive. It seeks to determine only whether a work originates (i.e. is firstly or simultaneously published) in the U.S. or not for the purpose of imposing registration requirements. ”

“ It is arguable that a work first made available online could be considered by any country in the world to be "first published" within that country and thus subject to domestic law (including any applicable formalities) as a "domestic work". Indeed, this was the position reached in relation to U.S. law in the Kernel v Mosley decision. As Professor Ginsburg noted,
A Union member meets its Berne obligations if it accords protection consonant with Convention minima to foreign Berne-Union works. ”

“ We look beyond the plain language of a statute only when it is unclear or ambiguous, when Congress has clearly expressed a legislative intent to the contrary, or when an absurd result would ensue from adopting the plain language interpretation. ”

“ Congress' awareness of the need to make a clear statement that a statute applies overseas is amply demonstrated by the numerous occasions on which it has expressly legislated the extraterritorial application of a statute. [52]
As a matter of policy, extraterritorial application of domestic law is contrary to the principle of democratic rule that has its basis in the idea of the consent of the governed. ”

“ The Treaty of Berne has been described as the greatest manifestation of the spirit of solidarity in the history of the world, and the Conference of Berne has been spoken of as the first Parliament of Mankind. It is always a temptation to speak in exaggerated terms of great advances in humanity and civilisation. ”

“ No in these particulars, Berne is a paragon of a community, and as rarely says one thing and does another, as any government you shall see. What I now tell thee, young man, is said to thee in the familiarity of a fête, as thou know'st, in which there have been some fooleries, to open confidence and to loosen the tongue. We openly and loudly profess great truth and equality before the law saving the city's rights, and take holy, heavenly, upright justice for our guide in all matters of theory. ”

“ The Union is not limited to the countries signing the Berne treaty. That treaty provided for the accession of new members; and since 1874 other nations than the original contracting parties have joined it, and in the near future we may see a universal postal association, embracing the entire world. ”

“ Let us then not deceive ourselves--though we of Berne affect the republic, and speak much of liberty, it is a small state, and the influence of those that are larger and more powerful among our neighbors rules in every thing that touches opinion. A noble is as much a noble in Berne, in all but what the law bestows, as he is in the Empire--and thou knowest we come of the German root, which has struck deep into these prejudices. ”

“ Thus were the federal alliances trodden under foot by those very persons who aspired to the name of conservatives. Berne had a right to repel this criminal attack by force. Suddenly calling to mind her ancient virtues, the city roused herself, and vowed to perish rather than tolerate the intervention of Unterwalden, the restoration of the Mass, and the fiery violence of the peasants. ”

“ The canton of Bern has no other sovereign than the single city of Bern: The sovereignty resides in the grand council, which has the legislative power and the power of making peace, war, and alliances, and is composed of two hundred counsellors and ninety-nine assessors, the election of whom is made, by the seizeniers and the senate, from the citizens, from whom they are supposed virtually to derive their power; but a general assembly of the citizens is never called together, on any occasion, or for any purpose, not even to lay taxes, nor to make alliances or war. ”

“ The envoy of the United States attended as a delegate, but refrained from committing this Government to the results, even by signing the recommendatory protocol adopted. The interesting and important subject of international copyright has been before you for several years. Action is certainly desirable to effect the object in view; and while there may be question as to the relative advantage of treating it by legislation or by specific treaty, the matured views of the Berne conference can not fail to aid your consideration of the subject. ”

“ The Bernese aristocrats were politicians from birth, so to speak, and the young men had a curious society amongst themselves, "Äusserer Stand," a society formed for the purpose of cultivating the diplomatic art and practising parliamentary oratory and tactics, especially their more formal outward side. Thus trained in bearing and ceremonial they acquired their much-admired political aplomb. Bern was French in fashion, in manners, and in language, and the German tongue was as little appreciated amongst the Bernese patricians as at the Court of Frederick the Great. ”

“ It addressed itself as follows to the confederates: “The great and only end of all our endeavours is to maintain this neutrality by every means in our power; to protect our country’s freedom and independence; to preserve its soil inviolate, and to defend its constitution.” The senate of Bern expressed itself as follows: “Our object is to guard the pacific borders of our country inviolate from the march of foreign armies; we are unanimously resolved, however, at all events, to maintain tranquillity, order, and security in our canton by all the means which stand in our power.” ”

“ Sad foreboding! which a catastrophe, beyond all human foresight, accomplished but too soon. "Let us therefore send a deputation to the Five Cantons," continued Berne; "let us call upon them to punish these infamous calumnies in accordance with the treaty; and if they refuse, let us break off all intercourse with them."—"What will be the use of this mission?" asked Basle. "Do we not know the brutality of this people? And is it not to be feared that the rough treatment to which our deputies will be exposed, may make the matter worse? ”

“ While the aristocracy of Berne protects the happiness, it is superfluous to enquire whether it be founded in the rights of man: the oeconomy of the state is liberally supplied without the aid of taxes; and the magistrates must reign with prudence and equity, since they are unarmed in the midst of an armed nation. ”

“ The impossibility of agreeing upon any plan, that would exactly quadrate with the local policy and objects of every state, soon became evident; and they wisely thought it better mutually to coincide and accommodate, and in that way to fashion their system as much as possible by the circumstances and wishes of the different states, than, by pertinaciously adhering each to his own ideas, oblige the Convention to rise without doing any thing. They were sensible that obstacles, arising from local circumstances, would not cease while those circumstances continued to exist ”

“ Bern, on the other hand, looked with dismay on the march of events, and, in Jan. 1798, sent Colonel Weiss with troops into the province. France replied by immediately sending men to occupy the southern shore of Lake Geneva. This was done at the request of the Helvetic Club, which gave as a pretext an old treaty of 1564, by which France guaranteed her support to Vaud. In vain did Weiss issue manifestoes; Bern was irresolute, and Vaud, feeling herself safe under the ægis of France, proclaimed the establishment of the "Lemanic Republic," with the seat of government at Lausanne (Jan. 24, 1798) . ”

“ Only for material interests, lying equally before the eyes of all the world; only when the duty of fighting against the violation of national treaties or human laws, or else for upholding them, does true policy take up the sword, and in this respect the statesmanship of Bern seems more prudent; yea, more in harmony with the Federal Compact, than that of Zurich. But there are moments in the lives of nations, when prudence will no longer avail, and energetic action, even passionate endeavor, becomes a necessity. ”

“ It would be irrational to establish an association upon the principles of the Convention of Geneva, without the association having the assurance that the army of its own country, of which it should be an auxiliary, would be guided, should the case occur, by the same principles. It would consequently be useless for us to appeal to the people of the country, inasmuch as the United States, as a Government, has made no declaration of adhering officially to the principles laid down by the Convention of the 22d August, 1864. ”

“ At Berne, to be a member of the government, is considered as a certain source of wealth, a convincing proof that the interests of those who hold the reins are not neglected; and that in a republic it is as difficult to insure to the people their legitimate rights, as under any other form of government. And so it will be as long as the world turns round; man is everywhere the same exacting, selfish, preying creature ”

“ That we would not labor under the imputation of being unwilling to form a strong and energetic federal government; but we would publish the system which we approved, and also that which we opposed, and leave it to our country, and the world at large, to judge between us, who best understood the rights of free men and free States, and who best advocated them; and to the same tribunal we would submit, who ought to be answerable for all the consequences, which might arise to the Union from the convention breaking up, without proposing any system to their constituents. ”

“ Vast personal property and additional domains acquired by conquest formed the chief source of the power of Bern, and brought in a great income to the patricians. Rule, domination, statecraft, became the chief concern of the Bernese aristocracy, whilst in Lucerne, Solothurn, and Freiburg, the government was, if possible, still more aristocratic than that of Bern, and in all these cases was presided over by a Schultheiss, or Mayor. In the Zurich republic a more democratic spirit was found, and the inhabitants were given to industrial and intellectual pursuits rather than to rule and conquest. ”

“ Perhaps it is the only one that will suit our present situation. The wisdom of the Convention was equal to something greater; but a variety of local circumstances, the inequality of states, and the dissonant interests of the different parts of the Union, made it impossible to give it any other shape or form. ”

“ In the Hague conventions and courts, again, and in certain other intergovernmental instruments, such as the Postal and Telegraphic Bureaux at Berne, we already possess the nucleus of the general forms required. We possess already the beginnings alike of the legislative, judicial, and administrative apparatus of international government. ”

“ Decentralization was carried to its extreme limit, each centre undertaking responsibility as regards local finance and administration, whilst Berne reserved to itself the right of determining the pattern and quality of the article required from any one centre, at any given moment, a system which tended to co-ordination, and the specialization of each group in the class of work for which it was fitted, by its relation to the sources of supply and the aptitude of its workers. ”

“ In the present case the mandate issued by the government of the United States shows that the convention in question is regarded as in force both by the United States and by the German Empire, represented by its envoy, and by Bavaria, represented by the same envoy. ”

“ Meanwhile, the leading statesmen of Bern, had, at length, became convinced that concessions must be made to the people. Fifty-two members were added to the great council from amongst the burghers, citizens of the minor towns, and rural inhabitants. It was resolved to introduce, within a year’s time, a new constitution; in which admission to every public function should be open to all, and due proportion should be observed in the emoluments of all public services. These resolutions were laid before the directory, together with a demand for the withdrawal of the French troops. ”