Do We Need A New Berne Convention?
Should Afghanistan (that burns books and musical instruments) still be a member?
I firmly believe one of the world’s greatest untapped economic goods - and one of the ways to build resiliency into communities - is to maximize the value of global intellectual property. One of the ways we do this is through global treaties and resolutions - like the Berne Convention, which was first introduced in 1886. To date, 168 countries have ratified it, which calls for the protection of literary and artistic works. In its last edit from 1979, here is part of Article 2:
The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramaticomusical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
And the next line:
It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.
This convention, alongside The Rome Convention and the World Trade Organization's TRIPS protocol, has been the backbone of global intellectual copyright law for nearly a century and a half. The economic benefits it has brought the world are immeasurable. Without these agreements, there would be no creative industries— as they have formed a foundation for governments and civil society to recognize copyright and create industrial systems, such as collection societies, to develop and administer rights when bought, sold, used, or traded.
But is the Berne Convention, or global intellectual property policy in its totality, fit for purpose in our modern world? Or could we imagine something better? That’s what this post explores.
Significant attention is, rightly so, directed to AI's impact on the creative economy. For example, Suno - a generative AI music firm - has raised $120m in venture capital. Its tagline is ‘everyone can create a song,’ yet it has no licenses to remunerate the human-made artistry its model learned from. For example, one can create a song using the search - ‘Pop Band That Writes About Dancing Queens and Rhymes with FABBA.’ At the same time, dozens of countries, including some of the world’s most populous, still lack collection societies, effectively making piracy their national policy. Many of them are signatories to Berne.
Ensuring that the human beings responsible for original ideas and creativity are fairly remunerated should be a basic tenet of economic policy in all countries, from basic registration to attribution in AI. A good way to think about this is through the 3 Cs (credit, consent, and compensation), ensuring each is enshrined in policy and process. But this is not the case, pretty much everywhere.
It is frustrating that many countries that ratified the Berne Convention lack these frameworks. Afghanistan remains a signatory, yet music and other forms of cultural expression are illegal. Bangladesh is, as well. It updated its copyright laws in 2000 and 2006, yet illegal duplication onto CDs and cassettes remains commonplace, let alone pirating content to train algorithms. These countries are examples, not outliers - but there’s a clear disconnect between signing the convention and doing something with it. I understand this happens in all contexts (such as the actions of nations that signed the Paris Climate Accords). But this lack of action essentially mandates economic loss.
So what can we do? I know we can’t change things overnight, but I also know thousands of folks all over the place are working to make things better. Learning from them, here are some ideas on what we can do now that could lead to either a reimagining of Berne or more compliance from those who signed it.
First: Educate Better:
This is not a problem in isolation. Copyright cannot be respected if there are no systems to teach what IP is, why it matters, and why it deserves to be treated like any other property. The complete lack of understanding of IP is a global problem. Introducing IP education in primary school - what it is, why it matters - would go a long way to addressing these challenges in the long term. But systems are also needed to ensure it is respected and enforced. Many exist and function effectively, but not everywhere. But this starts in school. How we invest in education requires a rethink.
Second: Recognize That Fixing This Is A Solution For Much More Than IP
There’s work to be done to explain - and define - that building and maintaining systems and policies that do what the Berne Convention was set out to do is about much more than intellectual property. This is about - and I mean this - addressing global problems and creating a resilient, equitable future.
IP can be a passive income stream. When used, such as when streamed online, it is not extracted every single time from finite resources. There is an environmental cost to building more data centers, but work has been done to reduce their impact. Intellectual property can be a resilient source of income—and can provide anywhere for anyone. It is, by definition, resilient, as it can help people bounce back from shock. For example, even in a crisis or natural disaster, IP usage can be tracked and paid out if the systems exist to register, track, and remunerate usage. Also, when effectively regulated, it is protected for the life of the owner (and sometimes, their families). At the same time, it is an economic good - music, art, film, or literature - that we all share, experience, and play a part in, either as consumers or players.
Whether it is the United Nations’ Sustainable Development Goals (of which only 15% have been delivered) or national goals (such as Nigeria striving to have its creative economy worth 10% of its total GDP by 2030), we need stronger policies that inextricably link the prospective value of effective, global, functional and nonpartisan IP policy with economic growth. With better policies and compliance - where everyone sees the collective and individual benefit of change - I believe Nigeria could exceed its targets before 2030. The hard part (creating amazing culture people want to consume) happens daily nationwide.
Third: Take Music and Culture More Seriously As An Economic Good
A more robust and workable intellectual property infrastructure can help assuage conflict and quell crisis settings. I also believe that music and culture are effective therapeutics that can improve individual and community health outcomes. Music has been used to communicate with—and persuade—communities to better understand disease outbreaks. But what’s missing is a seriousness about treating music and the creative economy as an economic good, and this lack of seriousness translates to a lack of seriousness in how we all understand, leverage, and regulate IP. Music, art, culture, and other forms of culture remain ‘nice to have’ industries rather than ‘need to have’ ones. And this is reflected in many of the actions of Berne's signatories. This is a mindset issue and often the hardest to change. As more compelling economic data emerges about the value of music (and Taylor Swift continues to uplift national GDP), I believe this can and will change.
Lastly - Recognize the Investment Opportunity Here
Addressing this is not a sunk cost but a lucrative investment opportunity. But we need to get creative in how global investment in developing and emerging markets recognizes and engages with the creative economy. It’s changing (for example, both the Inter-American Development Bank and the African Development Bank have engaged with fashion, music education, and gaming), but not fast enough. This is the policy change I am working towards - to create a model to insert the creative economy as a global development finance tool - so it can be built into what we build rather than bolted on as an ad-hoc initiative.
The Berne Convention is the best thing we have; its benefits are innumerable. But maybe we need something else, something better, something that every signatory takes seriously. If a country that burns musical instruments and books (essentially creating its own Burn Convention) can remain a signatory, and dozens of countries that ratified it lack IP policy, something must change. And what a significant opportunity that is for all of us
The author thanks Eric Jordi from Unison Rights for fact-checking this post.