Document Type

Working Paper

Publication Date

2001

Center/Program

Center for Gender & Sexuality Law

Abstract

This lecture examines the role of borders in the Berne Convention at the time of the treaty's first passage in 1886, and today. The later 19th century was an era of increasing commerce and communication among countries whose domestic production and reproduction of works of authorship had vastly increased, thanks in part to new technologies, such as photography, lithography, and high-speed printing. But at that time, the frontiers between nations often frustrated authors' hopes for control over, or at least compensation for, the international exploitation of their works. Authors' rights ceased at their national boundaries; the world beyond foreboded not dragons, but pirates. At the inception of the 21st century, thanks to digital communications, authors are again encountering a world of increased international commerce in works of authorship, a world in which the persistence of national borders, and the disparate national regulation they entail, may seem even more frustrating than before. (Though, admittedly, the consequences of disparity are less dire than before; today, in lieu of expiration of protection, authors primarily face inconsistency of protection.) Moreover, the simultaneous and geographically pervasive nature of digital communications may undermine some basic rules of the Berne Convention. While the Berne Convention was designed to mute the significance of international boundaries, much of its structure presumes those borders. Their effective absence may provoke perverse results. This lecture will consider the extent to which Berne relies on national boundaries. It will also suggest measures that might be taken to alleviate the unintended consequences of the application of Berne's rules to the geographically indiscreet communication of copyrighted works, especially by digital media.

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