Why should we formulate an international copyright convention? I'm afraid this is one of the problems that we must first understand. As we all know, copyright is a kind of intellectual property, which is regional. Specifically, it means that the legal effect of copyright can only reach the spatial effect range of the law granting copyright to works. For example, the copyright obtained according to the Copyright Law of People's Republic of China (PRC) can only take legal effect in People's Republic of China (PRC), but not in any other country at the same time, and vice versa. This regionality of copyright is determined by the nature that the laws enacted by the legislatures of various countries can only produce legal effect within their respective sovereignty. In this way, if there is no international copyright convention to extend their rights, the works of nationals of all countries can only be protected in their own countries. Of course, countries can extend the copyright of works by signing bilateral or multilateral agreements with other countries or countries, but this is very troublesome. On the other hand, as the object of copyright, a work is an intangible intellectual achievement with permeability. This nature means that works can be easily spread to any country in the world through mass media and understood by its citizens. Third, literary, artistic and scientific works are the crystallization of human knowledge and enjoy * * *. Appreciation of works refers to the works created by people in a country, a nation or a region, which can be borrowed by people in that country or region after infiltrating into other countries or regions. If there are no effective measures to extend the scope of protection of works to all or part of other countries, it will produce such an unfair result: works created by people in other countries at considerable cost and labor will be used free of charge, but the authors who have paid the labor and price will not get any compensation. This result is obviously unacceptable. As a result, the international copyright convention came into being, which extended the rights of authors' works to all possible countries, where the authors' works were protected as well as their own countries. Therefore, in my opinion, the main reasons for formulating international copyright conventions are: the copyright produced by works is regional, and the works are permeable and ornamental. In addition to these three reasons, there are other reasons, for example, with the rapid development of science and technology, the means of communication used by works are more and more advanced and faster; Another reason is that there are more and more exchanges between countries. This is why the international copyright convention came into being at the end of 19, not earlier.

Second, the significance of the principle of national treatment

Theoretically, there are two principles of private international law that can be applied to international copyright conventions: the law of the place of conduct and the law of the forum. The application of the principle of law of place of conduct or law of origin produces the principle of country of origin of works. The meaning of this principle is that works must treat nationality like people. The nationality of the work is: for unpublished works, the nationality of the author when the creation of the work is completed; If the author has more than one nationality, then according to article 5, paragraph 4 1 of the Berne Convention, if each nationality of the author is a member of the Berne Convention and the protection period of each country is different, then which country provides the shortest protection period according to law is the nationality of his work; For a published work, it refers to the nationality of the author at the time of publication or the country in which the work was first published.

Applying the principle of lex fori to copyright will produce (not necessarily, but in practice) the principle of national treatment, sometimes called the principle of assimilation. This principle means that authors protected by the Convention can claim the protection granted to their nationals by all States parties according to the laws of that country. Nationals who are members of the Convention are "assimilated into nationals".

It should be pointed out that the advantage of applying the first principle, that is, the principle of lex situs, is that the same work will be treated equally in all contracting States. The disadvantage is that lawyers and courts have to constantly apply a large number of foreign laws, sometimes applying the laws of several countries in the same transaction or case.

Secondly, the advantage of lex fori is that courts always apply their own laws. The disadvantage is that the protection of the same work by the member countries of the convention varies greatly according to the domestic law of the protected country.

In practice, the second principle, the principle of national treatment, has been proved to be the only feasible principle. There are two main reasons for this: one is psychological and the other is political. The so-called psychological reason means that the court is willing to apply its own familiar domestic laws, rather than foreign laws that it is not familiar with, and the quality of the judgment is better. Therefore, according to the principle of national treatment, their laws are more certain. The political reason mentioned here means that the right holders in countries with low protection level will realize that they are treated better in countries with high protection level than they are protected at home, thus putting pressure on the government to improve the domestic protection level. Therefore, because countries with high protection levels have taken the lead, every country should gradually improve its protection level.

The principle of national treatment is also the embodiment of the concept of "everyone is equal before the law" in international law. Therefore, whether nationals or foreigners, the convention assimilates them into nationals and allows them to enjoy the same rights in the country of their choice. The principle of national treatment still refers to whether the author enjoys rights and what is the scope of protection of rights by the laws of the protected country.

The advantage of the principle of national treatment is that the confiscation implemented by the law of the country that implements the property confiscation system is invalid in other countries. These countries must treat the obligee as a national of their own country, no matter how the obligee's country treats him. For example, after World War II, Germany was divided into East Germany and West Germany. In East Germany, publishers were deprived of their rights, but the courts in West Germany held that publishers' rights to copy and distribute in West Germany were not affected.

For these reasons, the Berne Convention for the Protection of Literary and Artistic Works concluded by 1886 in Berne, Switzerland took the principle of "national treatment" as its basic principle for the first time, and it was also adopted by international copyright conventions and neighboring rights conventions (such as UCC Convention and Rome Convention) after the Berne Convention.

The full application of the principle of national treatment in international copyright conventions means that the main problem in other fields of private international law-"what law should the court apply when handling foreign-related disputes" has hardly appeared in copyright law, and the choice of law is mainly determined by the international conventions that apply the principle of national treatment. Therefore, nationals of a member state of the Convention or any obligee who publishes his works for the first time in a member state of the Convention enjoy the same protection in every other member state as nationals of that country. Therefore, almost all countries where violations occur apply their own domestic laws.

Third, the meaning of the principle of national treatment

According to article 5, paragraph 1 of Berne Convention, the principle of national treatment means that, as far as works protected by Berne Convention are concerned, works originally produced in a member country, whose works are either nationals of that country, people who have lived in that country for a long time, or people who publish their works for the first time in that country, enjoy the rights conferred by law and may be granted to their nationals in every other member country in the future.

Here, we must understand the meaning of this provision from the following aspects:

First of all, the subject to which the principle of national treatment applies is the nationals of the member countries of international copyright conventions or those who have lived in the country for a long time. This mainly means that for unpublished works, when the creation of the works is completed, the author is a national of a member state of the international copyright convention or a person who has a long-term residence in that country; For a published work, when the work is published for the first time or at the same time, the author is a national of a member state of the international copyright convention or has a permanent residence in that country; If it does not belong to these two situations, such an author is also a qualified subject when the work is published for the first time or at the same time in the member countries of the international copyright convention. Specifically, there are the following categories of people to whom national treatment applies: (1) According to Article 5 of the Berne Convention, all citizens of the Berne Convention, regardless of whether their works are published or not, shall enjoy the minimum rights protection stipulated in the Convention in member countries; This is the author's nationality standard stipulated in the Convention.

(2) For nationals who are not members of the Berne Convention, as long as their works are published for the first time in any member of the Berne Convention or a member of the Berne Convention at the same time (here, "published for the first time in a member of the Berne Convention at the same time" means that nationals of non-member countries publish their works for the first time in a member of the Berne Convention within 30 days after publication. This is the content stipulated in article 3 (4) of the Berne Convention), then the national should also enjoy the minimum protection stipulated in the Berne Convention in all member countries; This is the nationality standard of works stipulated in the convention.

(3) Nationals of non-Berne Convention countries who have their habitual residence in Berne Convention countries also meet the author's nationality criteria. The "habitual residence" mentioned here can be either a residence or a real general residence.

(4) According to Article 5 (4) (3) of the Berne Convention 1, even if the producer of a film work does not meet the above three conditions, as long as his head office or habitual residence is in a member country of the Berne Union, the producer is entitled to enjoy the minimum rights protection stipulated in the Convention in that member country.

(5) Even if the author of an architectural work or an artistic work in an architectural work does not meet the above three conditions, as long as the building is located in a member state of Berne Union or the artistic work in the building is located in a member state, the author is regarded as qualified and can enjoy the minimum rights protection stipulated in the Convention in any Berne member state.

Second, every qualified subject enjoys copyright not only in his own country, but also in any other member country. However, the copyright enjoyed by qualified subjects in other member countries is not obtained according to their own laws, but according to the laws of the member countries that advocate copyright. The copyright enjoyed by each qualified subject in any other member country is consistent with the rights that the copyright law of that member country now gives and may give to its nationals in the future. In addition, you can also enjoy the rights specially endowed by Berne Convention, that is, qualified subjects enjoy two rights in the member countries of the Convention: one is to enjoy the copyright protection that the member countries of the Convention have provided to their nationals according to their own laws, and the copyright protection that may be given to their nationals in the future; The second is to enjoy the rights specially endowed by the Berne Convention. The latter right is basically the minimum right standard stipulated in the Berne Convention.

Therefore, nationals of a convention member country may enjoy more rights in other member countries than in their own countries, or they may enjoy less rights in their own countries. This may cause imbalance. In order to solve this problem, the international copyright convention requires that the copyright legislation of each member country must meet the minimum standards required by the convention. The so-called minimum right of international copyright convention is an extension of the principle of national treatment in copyright convention. Strictly speaking, because these minimum rights do not involve another legal system, they are not principles about conflict of laws; At the same time, the member states of the Convention are not required to grant these rights to their nationals as the minimum rights, because the Convention only deals with international affairs. Therefore, if there are no other special provisions in the Convention, only the members of the Convention are forced to grant these minimum rights to the nationals of member States other than their own nationals. If there is no principle of national treatment with the lowest standard of rights, there may be a serious imbalance unacceptable to some member States according to the convention. For example, a and b are members of the convention. If the convention only stipulates the principle of national treatment, but not the minimum standard of rights, then when country A grants the copyright owner the right to perform, broadcast and copy, while country B only grants the right to copy, the result is that the nationals of country B enjoy the right to perform and broadcast in country A, but not in country B, because the nationals of country B do not enjoy these rights themselves, which causes a serious imbalance that country A cannot accept.

In our country, the copyright law does not provide for the protection of practical works of art, that is to say, the practical works of art of our citizens cannot enjoy copyright and cannot be protected by the copyright law; However, Article 6 of the Provisions on the Implementation of International Copyright Conventions issued by the State Council OrderNo. 105 on September 25th, 992 stipulates: "The protection period of foreign practical artistic works is 25 years from the date of completion of the works." This shows that all practical works of art by nationals of Berne Convention countries can enjoy copyright in China, and the protection period is 25 years from the completion of creation. This treatment enjoyed by nationals of the Berne Convention is the minimum standard of rights stipulated in the Convention. Article 7 (4) of the Berne Convention stipulates: "Practical works of art are protected as works of art in the member countries of the Union. The state can decide its protection period through its own legislation. However, the protection period should last at least 25 years after the work is completed. " However, the Convention does not require the members of the Convention to grant this right to their nationals at the same time. Of course, according to this standard, China citizens' practical artistic works can enjoy copyright protection in other countries of Berne Convention, although they cannot enjoy copyright in their own countries.

In the Rome Convention, the first neighboring rights convention, the principle of national treatment was stipulated, and at the same time, the minimum standards of rights enjoyed by all three beneficiaries were stipulated: performers enjoyed unauthorized recording rights; Record producers and broadcasting organizations have the right to copy; Producers and performers of sound recordings have the right to perform sound recordings. If this point is retained, the principle of reciprocity can be applied to reservations made by States. Therefore, the combination of the principle of national treatment and the minimum rights ensures the coordination of the principle of reciprocity, thus avoiding the unfairness caused by the large gap in the level of protection.

On the other hand, the minimum rights also make it possible for the convention to grow. At first, the minimum rights stipulated in the convention were several, and later, other rights were added at the revision meeting. Therefore, the road to achieve a unified protection level and raise it to a higher standard has been created. For example, the Berne Convention only had the right of translation at first, and then it added the rights of performance, broadcasting, spirit and film. The universal copyright convention in 1952 only stipulated the right of translation, and when it was revised in 197 1, the rights of reproduction, broadcasting and public performance were added.

Fourth, the limitation of the principle of national treatment The first limitation of the principle of national treatment is the limitation of the principle of reciprocity, and sometimes it is strictly limited. The reason why reciprocity exists is "Manus lavat manum" (balance of interests). Country A wants its nationals to be protected in country B, so it provides protection to the nationals of country B. Reciprocity in international law is both "essence" and "form". "Substantial reciprocity" means that the protection provided by the nail country to the nationals of country B is the same as that provided by country B to the nationals of country A. Although there are exceptions, generally speaking, copyright conventions are relative to substantive reciprocity. This point has been made clear in the statement against substantive equivalence in the Paris Convention Revision Report of 197 1. One of the advantages of avoiding substantive reciprocity in copyright conventions is that the courts of member countries do not have to explain whether the laws of other member countries protect specific rights. The principle of national treatment enables them to apply their own laws to foreigners. Its disadvantage is that there is sometimes a big gap between the effective levels of protection, so nationals of countries with high levels of protection get less rights in some member countries than at home, while nationals of countries with low levels of protection get more protection in some convention member countries than at home. However, the advantages of promoting the extensive development of copyright relations between countries with different ideologies and different levels of economic development balance them.

"Formal reciprocity" or "partial reciprocity" in the Copyright Convention means that each member country protects the works of nationals of other member countries in some way regardless of the nature of protection, except for this reciprocity. This is generally determined by the principle of national treatment. Take the "comparative period" in the Berne Convention as an example. The convention stipulates that the minimum protection period is "50 years after the author's death", but countries can stipulate a longer protection period. "Comparative period means that countries that have granted protection to their nationals for more than 50 years only need to give foreigners a longer protection period, if their country of origin also gives this protection period. For example, the copyright protection period stipulated in Germany is "the author's life plus 70 years after the author's death", while Germany only needs to give the copyright owner in China a protection period of "the author's life plus 50 years after the author's death", because the protection period stipulated in China's copyright law is "the author's life plus 50 years after the author's death". Because article 7, paragraph 8, of the Berne Convention stipulates: "In any case, the determination of the protection period shall be governed by the laws of the country providing protection; However, unless otherwise stipulated by the state, the period of protection shall not exceed the period stipulated by the country of origin. "This shows that the principle of national treatment does not apply to the protection period.

The second restriction on the principle of national treatment is "reservation". This gives many countries the opportunity to join the Convention, while retaining some rights in part or in whole. Some conventions, such as the phonographic convention, are not allowed to be retained; Other conventions, such as the Rome Convention, allow some reservations, and the scope or connection point of rights can be reserved, such as the annex to the Rome Convention; Or keep all of a right, such as the right to perform recording. When deciding on reservations, the principle of reciprocity is usually applied, so nationals of country A who have made reservations cannot exercise this right in other convention member countries, because nationals of other member countries do not enjoy this right in country A.

Verb (abbreviation of verb) challenges the principle of national treatment

In the past century, the extension or restriction of the principle of national treatment has been proved to be the basic principle of copyright convention and neighboring rights convention. However, this principle is in danger of being weakened because the government tries to adapt to the rapid development of technology and communication. When the government grants new rights to the copyright owner, it can grant the copyright owner as copyright in the process of amending the copyright law, or it can grant the new rights to the obligee through a separate law other than copyright. If the government decides to grant it to the copyright owner as a new copyright, then the international copyright convention applying the principle of national treatment can require the member countries of the convention that have not yet granted this right to grant this new right to their nationals and have the right to receive corresponding remuneration. On the other hand, if the government decides to create a new right outside the copyright law, then the convention will not be applicable and foreigners will not be able to enjoy national treatment, so they have no right to use this new right to get paid. The following two examples illustrate this problem.

First, public lending right. Some countries have stipulated this right. According to this right, when a literary work is borrowed from the library by the public, its author has the right to receive royalties. In Germany, this right is granted by copyright law. Therefore, since Germany is a member of both the Berne Convention and the universal copyright convention, nationals of the two countries have the right to receive remuneration if their works are borrowed. On the other hand, Scandinavian countries and Britain also give nationals of convention member countries the right to get paid when their works are borrowed. On the other hand, Scandinavian countries and Britain also grant public lending right, but they are stipulated by separate laws other than copyright law, so this right cannot be granted to foreigners. Although they, like Germany, are also members of these two conventions, in these countries, the remuneration paid by public lending right is limited to the works of domestic authors.

Second, reproductive rights. It is the act of copying printed matter with a copier. One way to deal with making such copies for commercial purposes is to grant a compulsory license to make such copies and obtain the right of reproduction. Like Germany, the author is given the corresponding remuneration right. On the other hand, in 1976, France incorporated the sales tax and import tax on photocopiers that make such copies into the financial law. Part of this tax is paid to the copyright owner of the copied materials, but it is only paid to the copyright owner in France. Although France is a member of two international copyright conventions, the principle of national treatment is not applicable, because this compensation fee is not produced by copyright. So we can't give foreigners such compensation.

The difference between these two examples is that the right of reproduction is generally recognized by all international copyright conventions, and this right is the basic right of the two international copyright conventions, and unauthorized reproduction is allowed only under exceptional circumstances (such as personal use); Public lending right (far from being widely recognized) is only recognized in a few countries, and has not yet become a right recognized by international conventions. Therefore, according to the principle of fairness and the principle of applying national treatment to recognized rights, nationals of convention member countries strongly demand compensation for copying their works. So far, only a few countries have granted public lending right, so public lending right is still a very weak right. Another difference is that: as far as the right of reproduction is concerned, in the United States, users pay royalties, which has all the characteristics of copyright; As far as public lending right is concerned, compensation (without the concept of royalties) is paid by public funds in Scandinavia and Britain, which means that compensation in public lending right comes from taxpayers' taxes, which is different from the money of copyright users. Therefore, it is reasonable to simply call it the right of compensation rather than copyright and stipulate it by a separate law, so as to avoid the principle of national treatment, especially when the compensation is paid by government funds. If the government takes measures to deal with the new uses of copyright materials caused by new technologies or new modes of communication, the principle of national treatment and international copyright conventions based on the principle of national treatment will be seriously damaged in the near future.

A multilateral convention is an agreement signed between a country and many countries that must be abided by.