Primary Sources on Copyright (1450-1900)

Identifier: uk_1886

Commentary on International Copyright Act 1886

Ronan Deazley

Birmingham Law School, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on International Copyright Act 1886', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The Origins of the Berne Convention

4. British participation in the second Diplomatic Conference

5. Domestic Copyright and preparations for the third Diplomatic Conference

6. Copyright Reform, the ‘Irish Question', and the Path of Least Resistance

7. The Berne Convention and the Colonies

8. The International Copyright Act 1886

9. Berne: 6 September 1886

10. References

1. Full title

International Copyright Act 1886, 49 & 50 Vict., c.33

2. Abstract

The Act enabling the British government to become a signatory to the Berne Convention, which Convention came into force on 5 December 1887. The commentary describes the nature and extent of British participation in the three conferences which led to the signing of the Berne Convention, against a backdrop of several unsuccessful attempts to reform and consolidate the British copyright regime, the importance of pursuing meaningful Anglo-American copyright negotiations, and the significance of imperial-colonial copyright relations. The commentary also explores the extent to which the cause of Irish Nationalism, and the case for Home Rule, dominated the political landscape in early 1886, so explaining why the opportunity of adhering to the Berne Convention did not also lead to substantive reform of the domestic copyright regime at this time.

3. The Origins of the Berne Convention

Determining the catalyst and purpose behind the International Copyright Act 1886 is a relatively straightforward affair. It was designed to enable the British government to implement the Berne Convention, the history and substance of which has been comprehensively discussed within Prof. Ricketson's landmark treatise on the same.[1] As a result, little will be said in this comment about the Convention itself, other than to sketch out some key dates in its development. The origins of the Convention lie with the foundation of the International Literary Association in Paris in June 1878, under the presidency of Victor Hugo (1802-1885), with Ivan Turgenev (1818-1883) as Honorary Vice-President. From its inception the Association, which was expanded in 1883 to become the International Literary and Artistic Association (ALAI), assumed a leading role in advocating the development of international copyright relations. At the Association's 1882 Congress in Rome, it was suggested by Dr Paul Schmidt of the German Publishers' Guild that work should begin on securing a "union of literary property (une Union de la propriété)" similar in nature to the recently established Postal Union.[2] Following Schmidt's suggestion, it was proposed that the Association organise a conference "to discuss and settle a scheme for the creation of a Union of literary property"; the proposal was adopted and Berne was fixed as the place for the same.[3] The conference met in September 1883 under the presidency of Numa Droz (1844-1899), the head of the Swiss government's department of agriculture and commerce, and a draft convention was produced, of only ten articles in length, which draft formed the basis for the Berne Convention that would follow. In December 1883, the Swiss Federal Council, at the request of the ALAI, distributed a circular to "the governments of all civilised countries, inviting them to take part in a Diplomatic Conference with a view to protecting literary and artistic property".[4] This gave rise to the first of three diplomatic conferences in 1884, 1885 and 1886,[5] all held in Berne, and resulted in the signing of the Berne Convention, along with its annexes (the Additional Article and the Closing Protocol), on 9 September 1886. The Convention came into force on 5 December 1887.

The nature and extent of British participation in the three diplomatic conferences in Berne, as well as the issues raised by the prospect of ratifying the Convention, are neatly captured, in part at least, by the collected documents and correspondence presented to Parliament in January,[6] August,[7] and September 1886.[8] The British Delegate at the first conference, in September 1884, was Francis Adams,[9] charged with attending in a "consultative capacity" only, without power "to vote or to bind Her Majesty's Government to accept any views upon the Copyright question which may be adopted by the Conference".[10] On 17 September Adams sent a telegram to Earl Granville (1815-1891), Secretary of State for the Foreign Office, enquiring whether he might sign the procès-verbal final (the Final Protocol) of the conference which provided that the delegates:

"[A]re convinced, after the thorough investigation to which they have submitted the subject, that it would be for the general interest to unify as much as possible the principles regulating the [copyright] question in different countries, and that for this purpose measures should be taken to constitute an Union similar to those which exist for other objects of an eminently international nature. In consequence, they have agreed to submit, for the examination of their respective Governments, a draft of Convention embodying the minimum of rights which, in the opinion of the Conference, the Contracting Countries would be able reciprocally to guarantee to the authors of literary or artistic works."[11]

The Foreign Office responded that Adams might do so "on the distinct understanding that Her Majesty's Government are not bound by any conclusions arrived at".[12]

Following the 1884 conference, Adams wrote to Granville to the effect that he anticipated that a Union would be founded upon the Berne initiative "at no distant period". He continued that, given the present state of domestic copyright law Britain would not be in a position to adhere to the Convention, and urged "the expediency of taking measures for amending that Law" in order that they might be able to do so.[13] In turn Julian Pauncefote (1828-1902), on behalf of Granville, wrote to the Board of Trade in the same terms, pressing upon them the need for new legislation should Britain wish to join the proposed Union.[14] Thomas Farrer (1819-1899), the permanent secretary to the Board of Trade, who had previously given evidence to the Royal Commission on Copyright, drafted the response,[15] which was forwarded to the Foreign Office by Henry Calcraft on 2 December 1884. In it two main points of concern were raised. The first concerned the extent to which the domestic law might have to be revised to ensure compliance with any International Convention; anything other than minor amendments to the existing copyright regime, he suggested, could "lead to prolonged discussion", which of course naturally would impede Britain's ability to sign a convention at any time in the near future.[16] The goal of consolidating the various strands of British copyright law had been one of longstanding. When Thomas Noon Talfourd (1795-1854) introduced his first copyright bill in June 1837,[17] which would in time lead to the passing of the Copyright Amendment Act 1842,[18] his intention had been to codify the various strands of existing copyright legislation within one statutory measure.[19] Similar attempts at codification were embarked upon in 1857,[20] and 1864,[21] and, in the wake of the Report of the Royal Commission on Copyright,[22] again in 1879,[23] 1881,[24] and 1883,[25] all without success. Consolidation of the copyright regime had, to date, simply proved too difficult a subject upon which to achieve parliamentary consensus. As Farrer put it: "Copyright is a most thorny issue ... every point bristles with difficulty: and in every corner lurks a wasp's nest".[26]

The second reservation expressed by the Board, concerned the absence of an American delegate at the conference. On this they thought it:

"[V]ery unadviseable, in view of the extreme importance of American copyright to English authors, and the negotiations still pending with the United States' Government, that any steps should at this time be taken to alter the English law, and they would certainly advise the avoidance of any course which would commit Her Majesty's Government to any legislation with regard to copyright."[27]

Britain had been engaged in negotiations with the US on the subject of a copyright treaty between the two countries on and off for nearly fifty years, the latest round of which had stalled in the early 1880s, a state of affairs described by one commentator as "one of monotonous failure".[28] Given the value of the American market for British authors and publishers, the Board were, understandably perhaps, reticent to engage in any international copyright project that might alienate the US, and damage the possibility of a successful Anglo-American agreement on the same.[29] Indeed, as the Report of the Royal Commission had made clear six years before, when considering the question of ‘International Copyright', it was "impossible to exclude from examination the present condition of the copyright question between Great Britain and the United States".[30] Farrer himself had written to Joseph Chamberlain (1836-1914), then President of the Board of Trade, the previous week, outlining his objections to the international treaty. Chief amongst them was the fact that:

"[T]he United States are not a party to the Convention. Now to our authors the US are of far more consequence than all the nations of Europe. To enter into a Convention with France, Germany and Italy - which might contain terms not acceptable to America would be a dangerous step ... I confess I shrink from touching the subject, unless there were some great object to be gained - such as the American market."[31]

This objection, however, became less problematic by virtue of the fact that in June 1885 the Swiss convinced the US to send a delegate to the second conference (albeit only as an observer).[32] After the Gladstone (1809-1898) government fell in June 1885, Lord Salisbury (1830-1903), leader of the Conservatives, established a caretaker ministry in which he joined the Foreign Office to the office of the prime minister.[33] By comparison with Gladstone who, by and large, had pursued an isolationist agenda as regards Britain's relations with mainland Europe, Salisbury was much more willing to engage in foreign relations.[34] Having confirmed for himself that the US would be represented in Berne,[35] Salisbury indicated his intention that the British delegate should attend the second diplomatic conference "with the power to take part in its discussions and to vote". On the understanding that the course proposed "will in no way fetter or prejudice future action on the part of Her Majesty's Government on the question of copyright", the Board of Trade concurred with Salisbury's proposal.[36]

4. British participation in the second Diplomatic Conference

By the time the discussions of the second conference began on 9 September 1885, Adams had been joined by John Henry Gibbs Bergne (1842-1908), the head of the Treaty Department within the Foreign Office.[37] After two days, the conference was adjourned so that a drafting commission might begin work on a new draft of the convention, an additional protocol, and a closing protocol, based upon the deliberations of the delegates. In the meantime, Adams wrote to Salisbury on 12 September informing him that, as was the case the previous year, it had been proposed that the delegates should sign the procès-verbal submitting the draft convention for the approval of the relevant governments. Salisbury replied, two days later that, "[p]rovided [the] proposed document is understood not to bind Her Majesty's Government in any way, or to indicate their opinion", Adams was authorised to sign.[38] The documents prepared by the drafting commission were presented to a full session of the conference on 17 September, and on the following day, Adams, Bergne, and the delegates from 11 other countries signed the same.[39] Moreover, it was agreed that this draft of the convention was to be regarded as "a definitive basis of the Copyright Union, not subject to amendment, but to be accepted or declined as it stands".[40] With the exception of one minor amendment to Article 7, proposed by the Swiss government in July 1886,[41] this proved to be the case.

By contrast with the non-interventionist position that Adams had adopted during the first conference, at the second conference the British delegates took a much more active role in proceedings, and their influence over the content and substance of the new draft convention was considerable. They were responsible, for example, for shaping the definition of the "country of origin" set out in Article II,[42] as well as introducing the proviso in Article XI to the effect that national courts and tribunals could, if necessary, require a certificate from a competent authority to establish that any foreign author had satisfied the formalities to secure copyright protection in the relevant work in his or her country of origin. They were also instrumental in revising the Article concerning the lawful reproduction of "extracts, fragments, or entire passages from a literary or artistic work" in publications "destined and adapted for instruction, or ... of a scientific character";[43] this was replaced by a far less robust provision which simply set out that the "liberty of extracting portions" for such purposes, was "to be decided by the legislation of the different countries of the Union, or by special arrangements existing or to be concluded between them".[44] Indeed, the changes they made to the last-mentioned Article typified the nature of the British delegates' approach to the conference negotiations in general. As Ricketson observes, they became "the most persuasive advocates of the principle of national treatment ‘pure and simple'. Thus, wherever there was disagreement over the adoption of a uniform rule on a particular matter, they would urge that this was best left to be regulated by national legislation".[45]

On the question of how joining the Union might impact upon Anglo-American copyright relations, they reported that Boyd Winchester (1836-1923), the US delegate, while not a signatory to the procès-verbal, had indicated to the conference that "the United States' Government is kindly disposed in principle towards the proposition that the author of a literary or artistic work, whatever be his nationality and whatever the place of reproduction, should be everywhere protected on the same footing as the citizens and subjects of each nation". Drawing upon these sentiments, the British delegates proffered their opinion that were Britain to adhere to the Convention this would not have any "prejudicial effect in regard to any copyright negotiations with the United States". Indeed, they continued that "from the friendly interest in the objects of the Conference which has been expressed by the United States' Delegate, we are justified in anticipating that when once the Union has been formed, the United States will before long feel it difficult to abstain from becoming a party to it also".[46] On this point, Adams and Bergne's prediction would prove to be just over 100 years premature.[47]

5. Domestic Copyright and preparations for the third Diplomatic Conference

Taking note of the fact that the 1878 Royal Commission on Copyright had previously suggested that "the law should be reduced by codification to an intelligible and systematic form", Adams and Bergne continued their report to Salisbury that the government could prepare for signing the draft convention by one of two methods: either simply make the minimum necessary amendments to the existing International Copyright Acts to ensure substantial compliance thereto, or treat the opportunity of adhering to the convention as a platform for engaging in wholesale reform of the existing domestic copyright regime. As we have seen, numerous previous attempts to revise and consolidate the domestic regime had proved fruitless. The British delegates, however, were in no doubt as to the preferable course of action; to engage in anything other than "complete Reform of British Copyright law" would, they suggested, "be far from satisfactory". Without it, they continued, "British Copyright Law would still remain to the foreigner a sealed book, and even with the most careful amendment, some portions of it might be found to be in conflict with the International Convention".[48]

Should the government decide to overhaul the copyright regime, Adams and Bergne made a series of recommendations for Salisbury's consideration. They proposed, for example, that: the duration of copyright for all kinds of literary and artistic property should be fixed at the life of the author and thirty years after his or her death; the registration and deposit of foreign works in the United Kingdom be abandoned; and that the right to translate, dramatize, or abridge any work be reserved exclusively to the author for the duration of the copyright term in the original work.[49] These were, by and large, taken from the recommendations of the Royal Commissioners in 1878.[50] They finished their report as follows:

"[W]e beg, in conclusion, to urge upon the serious consideration of Her Majesty's Government the importance of a complete codification and amendment of Copyright Law, which, if carried out during the course of the next Session, would enable Her Majesty's Government to become one of the original Signatory Powers of the Convention for the creation of an International Copyright Union."[51]

On 19 October 1885 Salisbury sent Adams and Bergne's report to the Board of Trade for consideration and, after receiving an invitation from the Swiss Federal Council to attend a third diplomatic conference in September 1886 "for the purpose of signing the Convention", Pauncefote contacted the Board once more, under Salisbury's direction, for "any observations which they may have to offer upon the recommendations made by the British Delegates". Again it was Calcraft who replied to the Foreign Office on behalf of the Board. Now however, by contrast with the previous year, the Board was no longer opposed to the prospect of overhauling the domestic copyright regime. Indeed, having considered the report from the second conference, the Board were "strongly of the opinion that the present opportunity should not be lost for putting the Copyright question on a more satisfactory footing". "[I]t is of such importance" he continued "that foreign countries should be enabled clearly to understand what the Law of Copyright is in this country, that [the Board] think it will be most desirable, if the circumstances of the Session admit of it, to take the opportunity of codifying the present Copyright Law in the Bill which they hope to introduce into Parliament at an early date".[52]

Bently and Sherman have explored the reasons for this turnaround on the part of the Board of Trade.[53] Farrer, was at the time still the Permanent-Secretary, and it seems highly unlikely that he had reconsidered his previous reluctance to engage in wholesale reform of the domestic regime. He was however soon to resign, and this impending change, suggest Bently and Sherman, may have contributed to the Board's change in attitude to the question of copyright reform.[54] Moreover, following the change of government in June 1885, with Lord Salisbury heading up his caretaker ministry as both Prime Minister and Secretary of State for the Foreign Office, the country's new leader was in a strong position to carry the Board of Trade with him in his willingness to engage in international copyright negotiations.[55] Finally, the fact that Adams and Bergne had played such a significant role at the second diplomatic conference in reshaping the original draft of the Convention was also important. When Adams and Bergne reported to Salisbury on 25 September 1885 they made clear the extent to which they had taken a lead in the discussions at Berne: "We are glad to be able to report that almost all our proposals were accepted in principle, and that the Project as it now stands, is one which we believe we can confidently recommend to the favourable consideration of Her Majesty's Government".[56]

6. Copyright Reform, the ‘Irish Question', and the Path of Least Resistance

Adams and Bergne were not the only British representatives at the second conference in Berne. Also present was the publisher Frederick Daldy,[57] then Secretary of the Copyright Association, and formerly one of the Royal Commissioners involved in the preparation of the 1878 Report on Copyright.[58] Primarily a publishers' lobbying group, the Copyright Association had been established in 1872,[59] both to "watch over the general interests of Owners of Copyright property", and "to suggest and promote improvements in existing Copyright Laws".[60] Their early attentions had been taken up with the state of Anglo-Canadian copyright relations in the early 1870s, leading to the passage of the Copyright Act 1875 in Canada, and the Canadian Copyright Act 1875 in Britain.[61] More lately, however, the Association had taken up the twin concerns of international copyright relations and domestic copyright reform. On 25 July 1885, before Salisbury had decided to send Adams to the second conference at Berne, Daldy had written to the Foreign Office, on behalf of the Association, to request a meeting "to allow us to point out briefly the reasons why we attach great importance to England being allowed to take part in the discussions".[62]

On 31 July, when Daldy met with Robert Bourke (1827-1902), the Undersecretary to the Foreign Office, he was accompanied by James Augustus Cotter Morrison of the Society of Authors. The Society of Authors, had been formed in 1884,[63] under the Presidency of Lord Alfred Tennyson and, at their most recent meeting, in April 1885, it had been stressed that the reform of the copyright laws was "regarded as the most important branch of the society's work".[64] Both Daldy and Morrison presented Bourke with a Memorandum prepared for the meeting, which set out that, as a Union was likely to be formed, "a literary country like England should assist in its formation, otherwise a basis of Union may be formed to which we cannot assent. We should then be left out, and if, as will probably be the case, existing Treaties be denounced, English works will not have copyright anywhere but in the British dominions to the great detriment of the owners".[65] This prospect, that Britain's existing copyright treaties might rendered redundant in the wake of a new International Convention, was certainly influential in Salisbury's decision to send Adams to the second conference with the brief to take part in its discussions and to vote.[66]

Following the second conference, Daldy wrote directly to the Prime Minister, on 26 December 1885, with a "Memorial from [the] Copyright Owners of Great Britain". In it they reiterated the recommendations of Adams and Bergne in expressing their hope that the new legislation designed to enable Britain to join the Copyright Union would "embrace the whole subject, and should place the law on a sound and intelligible footing; instead of legislating merely with special reference to that Union". To this end, they continued, they were working on a draft Bill, which was being prepared by Emanuel Underdown,[67] "so that the Board of Trade may have at any rate the materials at hand which will enable them to draw a Bill quickly which may secure your sanction and support".[68] With both the Foreign Office and the Board of Trade in favour of substantial revision of the copyright system, it must have seemed that the reforms to the domestic regime towards which the Society and the Association had worked were finally within reach. And yet, despite their best endeavours, and this considerable governmental support, the reform and consolidation of the copyright laws would not be secured for another twenty-five years.[69]

Much of the explanation for the lack of any substantial copyright reform in 1886 lies in the fact that the first six months of the year was a period of considerable domestic unrest and political upheaval. Following the elections of November 1885, Lord Salisbury, with the support of the Irish Nationalists led in Westminster by Charles Parnell (1846-1891), formed a minority government.[70] Salisbury however was forced to resign on 26 January 1886, and Gladstone was returned to office. When Gladstone formed his new Liberal cabinet at the end of January, the state of the nation's trade was in depression and unemployment was running high, a situation that was further exacerbated by the severe winter of 1885-86. Two weeks after Gladstone's return, a 20,000-strong meeting in Trafalgar Square for the unemployed, led by the Social Democratic Federation, ended in a riot. Throughout the rest of that year and the next, the metropolitan middle-classes feared similar violent outbursts from the disenfranchised lower orders.[71]

This sense of unease was exacerbated by the extent to which the ‘Irish Question' came to dominate Gladstone's third ministry until its early collapse in June 1886. During the early 1880s Parnell's Irish Nationalists regularly obstructed proceedings in the Commons, ensuring that the claims of the Irish commanded more and more time and attention from both government and parliament. Upon his return to office, Gladstone resolved to support the Irish Nationalists' demands for Home Rule, a strategy that proved incredibly divisive within his own party. Influential Liberals such as Lord Hartington (1833-1908) and Joseph Chamberlain (1836-1914) opposed Gladstone's policy of Home Rule; like many others within and outside of parliament, they were concerned that greater independence in Ireland might increase the likelihood of foreign attacks on British soil.[72] Regardless, Gladstone introduced his Home Rule Bill on 8 April 1886; on 8 June it was defeated by 341 votes to 311, with 93 Liberals, the new Liberal Unionists led by Hartington and Chamberlain, voting in opposition.[73] Gladstone thereafter called an election, and in June 1886, the Conservatives were returned to power; for the second time in just over a year, Salisbury replaced Gladstone as Prime Minister.

It was against this backdrop of Gladstone's third brief ministry that the International Copyright Act 1886 was passed. On 15 March a deputation of authors, artists and publishers met with Anthony Mundella (1825-1897), the new President of the Board of Trade, and James Bryce (1838-1922), the Under-Secretary of State at the Foreign Office, to impress upon the new government the virtue of preparing for the third diplomatic conference in Berne by way of a general amending and consolidating copyright act, rather than by means of a more narrowly drawn piece of enabling legislation.[74] Their efforts however were, by this time, already redundant. Eleven days earlier, on 4 March, Pauncefote had written to Robert Herbert (1831-1905), the Permanent-Undersecretary at the Colonial Office, concerning the government's decision to become one of the signatories to the draft convention agreed in Berne in September 1885. "For this purpose", he continued, "it will be best, in view of the exigencies of the present Session, to confine the necessary legislation to a simple amendment of the existing Copyright Law, calculated to meet the terms of the Convention".[75] While Gladstone was apparently content to continue with Salisbury's policy of adhering to the proposed Convention,[76] it seemed clear that, in the circumstances, there would be no comprehensive review of the copyright regime.

7. The Berne Convention and the Colonies

There were two aspects to Britain's participation in the Berne conferences that gave pause for thought as regards its colonial possessions. The first concerned how the substantive provisions of the new Convention might impact upon both the imperial and colonial copyright regimes,[77] as well as upon imperial-colonial relations.[78] Related to this, was the question of whether Britain's accession to the Convention would in any event encompass all of its colonies and foreign possessions. The Earl of Rosebery (1847-1929), Gladstone's new Foreign Secretary, was of the opinion that, if one signature were sufficient to bring the entirety of the British Empire within the proposed Union, then "many difficulties of detail would be avoided". It was decided however that all of the colonies would be consulted upon the question of accession, "to settle how the points which affect the British Colonies should be treated".[79] It was clear also that this commitment to consult was more than mere rhetoric. At the 1885 conference, the British delegates had suggested the inclusion of a new Article (A.XIX) that would allow states acceding to the Convention to do so at any time "for their Colonies or foreign possessions"; this, however, was subject to the proviso that they could do so "either by a general declaration comprehending all their Colonies or possessions ... or by specially naming those comprised therein, or by simply indicating those which are excluded".[80] In short, this preserved the option of non-accession for those colonies who did not wish to become a part of the Copyright Union, even if Britain did.

It was hoped, of course, that none of the colonies would choose to exclude itself from joining the Convention, and that the integrity of the imperial copyright regime would be retained. Moreover, one of the additional benefits of this process, for the colonies, was spelled out in a letter from Pauncefote to Herbert of 4 March 1886. He explained that, in drafting the legislation to enable Britain to accede to the Convention:

"[T]he opportunity would be taken to remove an anomaly in the existing Law, by providing that first publication in any of the Colonies and foreign possessions of Her Majesty should give title to copyright throughout the British dominions, and consequently (when the International Convention is ratified) throughout the Copyright Union. Such legislation would meet the just complaint of the Colonies that, according to existing Imperial Law, first publication in the United Kingdom gives title to copyright in all the British Colonies; whilst if such first publication takes place in a Colony, the title to copyright in the United Kingdom is irretrievably lost."[81]

Nearly twenty years before, in Routledge v. Low (1868) the House of Lords had decided that whereas the Copyright Amendment Act 1842 secured copyright protection throughout the empire for works first published in Britain, by contrast, books first published in a British colony received no comparable protection in Britain or in any of its other territories; rather, they were left with such protection as might be afforded under the local copyright laws.[82] This lack of reciprocal protection within the empire was regarded as thoroughly unjust.[83] The Report of the Royal Commission in 1878 considered the state of the law "anomalous and unsatisfactory"; the colonies, they continued, "are not treated on fair and equal terms".[84] Here then was a timely means of both encouraging colonial compliance with Britain's desire to sign the Convention on behalf of itself and all its territories, while at the same time addressing a long overdue inequity within the imperial copyright regime. Given the short timeline within which the new legislation had to be enacted, Pauncefote urged Herbert and the Colonial Office to consult with the colonies by means of telegraph, "pointing out the necessity for immediate action in the matter".[85] Telegrams were duly dispatched.

In the meantime, on 29 March, leave was given for the International and Colonial Copyright Bill to be introduced to the House of Commons.[86] On the day on which the Bill was read for the second time in the Commons, 8 April, the Foreign Office wrote once again to the Colonial Office concerning the introduction and substance of the Bill. This letter, which included a lengthy memorandum by the parliamentary draftsman Henry Jenkyns,[87] reiterated that, should any colony wish to "stand aloof and be excepted either from joining the International Copyright Union, or from the provisions for giving colonial authors copyright in the United Kingdom and in the Colonies", their wishes would naturally be respected.[88] At the same time, however, it was made clear that for any colony to actively place themselves "in the position of a foreign State towards the mother country and all sister Colonies", and so forgo "the benefits offered by the present Bill", was a scarcely creditable course of action;[89] as Jenkyns observed: "[I]t seems obviously unnecessary to dwell on the advantages of making the Empire one for the purposes of copyright. Indeed, any other system seems to lead to what may be termed inter-colonial piracy, and would tend to create between the Colonies the same difficulties which the Berne Convention has sought to remove as between all civilized States".[90] By 1 June 1886, Herbert had received positive responses from India, the Cape of Good Hope, Newfoundland, South Australia, Natal, and Victoria; ten days later Queensland, New Zealand, Tasmania, and New South Wales had added their names to the list. On 12 June Herbert forwarded a telegram to Pauncefote, from the High Commissioner of Canada, which stated simply: "Canada consents to enter Copyright Convention".[91] Less than two weeks later the International Copyright Act received the Royal Assent.[92]

8. The International Copyright Act 1886

As will have been gathered by now, the 1886 Act, which passed through parliament with relative ease, had two main goals: to ensure that the domestic copyright law was compliant with the obligations under the proposed convention, and to address the "anomalous and unsatisfactory" position of the colonies within the imperial copyright regime.

As regards the former, revising the domestic provisions on both formalities and translation rights were of primary importance. In line with the principle that reciprocal protection under the convention would be subject only to the "formalities prescribed in the country of origin of the work",[93] the Act did away with the registration and library deposit requirements imposed upon foreign works under the International Copyright Act 1844.[94] As for translations, under the International Copyright Act 1852,[95] it was provided that foreign authors would receive the "right of translating" their work for a period of five years from first publication;[96] this translation right, however, was contingent upon satisfying a series of considerably burdensome practical and legal conditions.[97] Now, under the 1886 Act, the translation right was accorded the same status as the basic right of reproduction, subject to the proviso that if, after ten years from the time of first publication, an authorised English translation of the protected work had not yet been produced, then the translation right was forfeit.[98] The Act also made clear that translations of works, when produced, would be copyright protected as if they were "an original work".[99] This provision for translations actually exceeded the requirements of the Convention (which required that translations be protected only for ten years from publication);[100] however, when the text of the Convention was revised at the Paris Conference 1896, the protection for translations was extended so that it mirrored the provisions of the 1886 Act.[101]

In relation to the question of colonial copyright, the Act did indeed provide that the existing domestic copyright legislation would apply to works "first produce in a British possession in like manner as they apply to a work first produced in the United Kingdom".[102] Moreover, as was the case for foreign works, the Act provided that, where a colony had provided for local registration there was no need to register the work at Stationers' Hall in London, and that the library deposit requirements would not apply.[103] The legislation also formalised A.19 of the 1885 draft Convention by explicitly stating that any "any British possession" might be exempted from any action taken by Britain under the 1886 Act were it was considered "expedient" to do so.[104] In the same vein, the legislation explicitly preserved the independence of the colonies by providing that nothing "shall prevent the passing in a British possession of any Act or ordinance respecting the copyright within the limits of such possession or works first produced in that possession".[105]

Bergne, writing in the Law Quarterly Review the following year, summarised the substance and achievements of the 1886 Act as follows:

"[T]he new Act establishes an uniform system of Copyright throughout the British Empire, enables Her Majesty to acceded to the recently-signed International Conventions, and removes the principal difficulties hitherto existing in regard to the conclusion of satisfactory arrangements with foreign countries. This is no mean achievement; and though the Bill passed through both Houses of Parliament comparatively unobserved, it may be predicted that, if found to work well in practical detail, it will hereafter rank as one of the most important domestic Acts of recent years, and prove a further bond of union throughout the British Empire."[106]

9. Berne: 6 September 1886

On 2 July Lord Rosebery sent two copies of the 1886 Act to Adams, "passed for the purpose of enabling Her Majesty's Government to sign the International Copyright Convention", with instructions to "communicate one copy to the Swiss Government".[107] Adams and Bergne once again travelled to Berne to attend the third diplomatic conference. The conference that opened on the 6 September was in essence a formal proceeding only. As Ricketson notes, "there was no intention that the text settled by the 1885 Conference should be subject to any significant amendment".[108] The Convention, along with its annexes (the Additional Article and the Closing Protocol), were signed on the last day of the conference, 9 September 1886. When Adams and Bergne reported to Salisbury's new Foreign Minister, the Earl of Iddesleigh (1818-1887), on the following day, they were able to inform him that Britain, along with Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, and Tunis[ia], had signed the Convention. Also worthy of note was the fact that the United States delegate had once again expressed "the sympathy of his Government for the substance and objects of the Convention, and their hope that they might find themselves in a position to adhere to it at an early date". The British delegates continued by recommending that the government take necessary steps to ensure that, by time the International Convention came into force, all of Britain's existing bilateral Conventions (with Belgium, France, Germany, Italy and Spain) should be brought to an end. When Adams and Bergne concluded their report, they did so with a note of unbridled optimism:

"We believe that the International Copyright Union, which may now be said to be founded, will not only efficiently replace the existing Conventions, but will confer upon British owners of literary and artistic property far more extensive and satisfactory protection than is now enjoyed by them abroad; and we entertain strong hopes that, before the expiration of many years, the Union will comprise all the principal States of the world which have any practical interest in the matter."[109]

One year later, the exchange of ratifications took place, once again in Berne; of the original signatories only Liberia failed to ratify the convention at that time.[110] On 28 November 1887, an Order in Council was issued on behalf of the Queen, in accordance with the 1886 Act, adopting the Convention.[111] One week later, on 5 December 1887, the Convention itself came into force.[112] A new chapter in international copyright relations had begun. A Union with a combined population of around 500 million had been established.[113] By far, the most important of the signatories in this regard was Britain. When Adams and Bergne signed the Convention, on behalf of Britain and all her colonies, approximately 300 million people scattered throughout the British Empire were brought within the parameters of the Union.[114] In this regard, Bently and Sherman are not wrong to suggest that, in the end, "[t]he ultimate success of the Convention, can be said to have depended, very largely, on Britain's decision to sign".[115]

10. References

Government papers and legislation

Berne Implementation Act, 1988, Pub. L. No.100-568, 100^th Congr., 2d Sess., 102 Stat. 2853

Bill for consolidating Laws relating to Copyright in Works of Literature and Art, 1857, Session II, Paper No.142, I.409

Bill to consolidate and amend Acts relating to Copyright in works of Literature and Fine Arts, 1864, Paper No.59, I.499

Bill to consolidate and amend Law relating to Copyright, 1878-79, Paper No.265, II.3

Bill to consolidate and amend Law relating to Copyright, 1881, Paper No.121, I.639

Bill to consolidate and amend Law relating to Copyright, 1883, Paper No.141, II.171

Canadian Copyright Act, 1875, 38 & 39 Vict., c.53

Foreign Reprints Act, 1847, 10 & 11 Vict., c.95

International Copyright Act, 1844, 7 & 8 Vict., c.12

International Copyright Act, 1852, 15 & 16 Vict., c.12

Report of the Royal Commissioners on Copyright (1878), C.2036

Switzerland, No.1 (1886), Correspondence Respecting the Formation of an International Copyright Union, C.4606, 1

Switzerland, No.2 (1886), Further Correspondence Respecting the Formation of an International Copyright Union, C.4606

Switzerland, No.3 (1886), Further Correspondence Respecting the Formation of an International Copyright Union, C.4606

Cases

Routledge v. Low (1868) 3 LTR 100

Books and articles

Anon., Report of the Copyright Association, For the year 1874-75 (London: Longmans, Green & Co., 1875)

Bently, L. and Sherman, B., "Great Britain and the Signing of the Berne Convention in 1886", Journal of the Copyright Society of the USA, (2001): 311-340

Bergne, J.H.G., "The International Copyright Union", Law Quarterly Review, 3 (1887): 14-31

Bonham-Carter, V., Authors by Profession, 2 vols (Los Altos, CA: William Kaufmann, Inc., 1978)

Briggs, W., The Law of International Copyright (London: Stevens & Haynes, 1906)

Daldy, F., The Articles of the International Copyright Union (London: Longman, Green and Co., 1887)

Nowell-Smith, S., International Copyright Law and the Publisher in the reign of Queen Victoria (Oxford: Clarendon Press, 1968)

Ricketson, S., The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (London: Centre for Commercial Law Studies, Queen Mary, 1987)

Seville, C., The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge University Press, 2006)

Underdown, E.A., The Law of Art Copyright, (London: John Crockford, 1863)

[1] S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (London: Centre for Commercial Law Studies, Queen Mary, 1987).

[2] Ibid., 48.

[3] Ibid., 49.

[4] M. Vernet to Earl Granville, 17 December 1883, in Switzerland, No.1 (1886), Correspondence Respecting the Formation of an International Copyright Union, C.4606, 1 (see: uk_1886b).

[5] For details of these three diplomatic conferences, as well as the various drafts of the convention, see Ricketson, 55-80, 963-72. See also: Switzerland, No.1, 9-13, 17-29, 56-67; Switzerland, No.3 (1886), Further Correspondence Respecting the Formation of an International Copyright Union, C.4606 10-26 (see: uk_1886b).

[6] Switzerland, No.1.

[7] Switzerland, No.2 (1886), Further Correspondence Respecting the Formation of an International Copyright Union, C.4606 (see: uk_1886b).

[8] Switzerland, No.3.

[9] Adams was also the British delegate at the Postal Congress in Paris in 1878, which congress ultimately resulted in the signing of the Parcel Post Convention in November 1880; Britain, however, was not a signatory at that time.

[10] Earl Granville to Mr Adams, 2 February 1884, in Switzerland, No.1, 5.

[11] Ibid., 28.

[12] Ibid., 16.

[13] Mr Adams to Earl Granville, 26 Sept. 1884, in ibid., 29.

[14] Sir J Pauncefote to Mr Calcraft, 22 Oct. 1884, in ibid, 31.

[15] See C. Seville, The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge University Press, 2006), 67-68.

[16] Mr Calcraft to Sir J Pauncefote, 2 Dec. 1884, in Switzerland, No.1, 34.

[17] Bill to consolidate and amend the Laws relating to Copyright in Printed Books, Musical Compositions, Acted Dramas and Engravings, to provide Remedies for the Violation thereof, and to extend the Term of its Duration, 6 June 1837, Paper No.380, I: 573. This Bill did not, however, attempt a complete codification of the copyright regime, in that it didn't incorporate the existing copyright legislation relating to works of sculpture (see: uk_1798).

[18] Copyright Amendment Act, 1842, 5 & 6 Vict. c.45.

[19] See: uk_1842.

[20] Bill for consolidating Laws relating to Copyright in Works of Literature and Art, 1857, Session II, Paper No.142, I.409.

[21] Bill to consolidate and amend Acts relating to Copyright in works of Literature and Fine Arts, 1864, Paper No.59, I.499.

[22] See: uk_1878.

[23] Bill to consolidate and amend Law relating to Copyright, 1878-79, Paper No.265, II.3; see: uk_1879.

[24] Bill to consolidate and amend Law relating to Copyright, 1881, Paper No.121, I.639.

[25] Bill to consolidate and amend Law relating to Copyright, 1883, Paper No.141, II.171.

[26] Farrer to Joseph Chamberlain, 24 Nov. 1884, TNA, BT 22/39/6, quoted in L. Bently and B. Sherman, "Great Britain and the Signing of the Berne Convention in 1886", Journal of the Copyright Society of the USA, (2001): 311-340 (329).

[27] Mr Calcraft to Sir J Pauncefote, 2 Dec. 1884, in Switzerland, No.1, 34.

[28] J.H.G. Bergne, "The International Copyright Union", Law Quarterly Review, 3 (1887): 14-31 (17).

[29] Farrar, for example, was of the opinion that any form of tinkering with Britain's copyright regime was, if possible, best avoided, "unless there were some great object to be gained - such as the American market"; quoted in Seville, 68.

[30] Report of the Royal Commissioners on Copyright (1878), C.2036, xxxvi.

[31] Farrer to Chamberlain, 24 Nov. 1884, TNA, BT 22/39/6, quoted in Bently and Sherman, 327. John Bergne (1842-1908), the Head of the Treaty Department within the Foreign Office, who, in 1885, attended the second diplomatic conference with Adams, wrote in 1887 that the importance of the American market for British authors and publishers "probably exceeds that attaching to all the rest of the world put together"; Bergne, 15.

[32] The American delegate attending the second conference was Boyd Winchester (1836-1923), Minister Resident and the American Consul-General in Switzerland.

[33] Note however that the official office of Prime Minister was not constitutionally recognized to exist until 1905.

[34] Bently and Sherman, 329-30.

[35] See Salisbury's telegraphic correspondence with Washington on this matter, in Switzerland No.1, 44.

[36] Mr Calcraft to Sir J Pauncefote, 15 Aug. 1885, in ibid., 45.

[37] The Marquis of Salisbury to Mr. Adams, 18 Aug. 1885, in Switzerland No.1, 45.

[38] The Marquis of Salisbury to Mr. Adams, 14 Sept. 1885, in ibid., 49.

[39] The other countries to sign the procès-verbal from the second conference included: France, Germany, Haiti, Honduras, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland, and Tunis[ia]. Four delegations did not sign: Argentina, Belgium, Paraguay, and the US; see Switzerland, No.1 (1886), 47-48, 62.

[40] See Messrs. Adams and Bergne to the Marquis of Salisbury, 25 Sept. 1885, Switzerland No.1, 51.

[41] For details see: Switzerland, No.3, 1-10.

[42] Article II, Draft Convention, Sept. 1884.

[43] Article VIII, Draft Convention, Sept. 1884.

[44] Article VIII, Draft Convention, Sept. 1885.

[45] Ricketson, 73.

[46] Switzerland No.1, 55.

[47] Berne Implementation Act, 1988, Pub. L. No.100-568, 100^th Congr., 2d Sess., 102 Stat. 2853; on this Act, see in general: Patry on Copyright, §23:45.

[48] Messrs. Adams and Bergne to the Marquis of Salisbury, 25 Sept. 1885, in Switzerland No.1, 55-56.

[49] Ibid.

[50] See: uk_1878; the only real difference in this regard concerned their recommendation on translation rights. The Royal Commission, in discussing the question of "International Copyright", drew a distinction between a foreign author's right of translation and the copyright in a translation made in United Kingdom. In relation to the latter, they recommended that it should be regarded as "an English work, and be subject to English law on these points"; that is, in the UK, "translators, whether of plays or books, and adapters of dramatic works to the English stage should, in our opinion, have the same rights as authors of original works" (xli, xliii). As regards the work of foreign authors, the Commission recommended "an unconditional right of translation ... for three years after publication of the original work"; if the foreign author published a translation in the UK within that three year period, then they were to enjoy protection of their translation for ten years (xlii).

By contrast Adams and Bergne, influenced perhaps by the French delegation at the 1885 conference, who argued for a complete assimilation of translation rights (see: Ricketson, 72), were recommending that the domestic copyright regime include a specific right of translation, similar in nature to the right to abridge or to dramatize a work. Moreover, this recommendation went further than was required by the draft convention. Indeed, Adams and Bergne continued: "It may be observed that if our suggestions in regard to the right of translation should be thought to go too far, the reservation to the author of the exclusive right of translation for a period of ten years from the date of publication would suffice to meet the requirements of the International Convention. This period was, however, fixed as a minimum, and was not designed to impede the progress of legislation on a more liberal basis"; Switzerland, No.1, 56.

[51] Ibid.

[52] Mr. Calcraft to Sir J. Pauncefote, 18 Dec. 1885, in ibid., 71.

[53] Bently and Sherman, 329-39.

[54] Ibid, 339, n.150.

[55] In general, see Bently and Sherman, 329-31.

[56] Messrs. Adams and Bergne to the Marquis of Salisbury, 25 Sept. 1885, Switzerland No.1, 50.

[57] Daldy attended the conference having been given a letter of introduction by Lord Salisbury; see: Seville, 68, n.61.

[58] See: uk_1878.

[59] The Times, 20 March 1872.

[60] "Constitution and Rules of the Association", in Report of the Copyright Association, For the year 1874-75 (London: Longmans, Green & Co., 1875), 7.

[61] Copyright Act, 1875, 38 Vict., c.88; Canadian Copyright Act, 1875, 38 & 39 Vict., c.53. The combined intent of these two measures was to encourage the production of authorised, but affordable, Canadian editions of British works for the Canadian market, which editions would supplant the existing demand for unauthorised American reprints within that market, while at the same time protecting the British publishers against an influx of these cheaper authorised Canadian reprints. For details of the manner in which the legislation operated, see Seville, 106-109.

[62] Mr. Daldy to Mr. Bourke, 25 July 1885, in Switzerland, No.1, 37.

[63] Francis Adams was a member of the Society; see: V. Bonham-Carter, Authors by Profession, 2 vols (Los Altos, CA: William Kaufmann, Inc., 1978), 1: 125; Seville, 68, n.61.

[64] The Times, 28 April 1885; for commentary on the founding and the work of the Society of Authors see Bonham-Carter, 1: 119-65.

[65] Mr. Daldy to Mr. Bourke, 25 July 1885, in Switzerland, No.1, 37; see also F. Daldy, The Articles of the International Copyright Union (London: Longman, Green and Co., 1887), iii-xviii.

[66] See Bently and Sherman, 333-39; see also the commentary above: 3. The Origins of the Berne Convention.

[67] Bonham-Carter, 128. In December 1884 the Society of Authors had requested Basil Field to instruct their honorary counsel, Emanuel Underdown, to "prepare the draft of a Bill" based upon the Report of the Royal Commission on Copyright in 1878, and the subsequent Bill prepared by Lord John Manners in 1879; The Times, 28 April 1885. Underdown, of course, was the author of a treatise on The Law of Art Copyright, (London: John Crockford, 1863).

[68] Mr. Daldy to the Marquis of Salisbury, 26 Dec. 1885, in Switzerland, No.2, 2.

[69] Copyright Act, 1911, 1 & 2 Geo.V, c.46.

[70] In the elections of November 1885 the Liberals, led by Gladstone, took 335 seats, the Conservatives, led by Salisbury, took 249 seats, and the Irish Nationalists took 86 seats.

[71] See in general: Read, 324-25.

[72] Read, 342.

[73] Ibid., 343.

[74] The meeting is recounted in Bonham-Carter, 128-29; see also the Daily News, 16 March 1886.

[75] Sir J Pauncefote to Sir R Herbert, 4 March 1886, in Switzerland No.2, 3. About this, Bergne wrote in 1887: "Although the Government of the day were well disposed to undertake such a measure, it was recognised that it involved many disputable points, would occasion much discussion in both Houses of Parliament, and would certainly occupy a large share of government time. It was therefore finally decided to prepare a Bill for the purpose of amending the existing Statutes in conformity with the provision of the Bernese draft"; Bergne, 25.

[76] Bently and Sherman suggest that Gladstone was willing to do so as a result of the "changing perceptions of the value of entering into such a convention" in that it "began to be perceived as both desirable and necessary to protect British interests"; Bently and Sherman, 333.

[77] For example, in 1847 the Foreign Reprints Act had been passed with the aim of addressing the demands for ‘cheap literature' in the colonies, by allowing them to import unauthorised reprints (in general, American reprints) of British copyright works, contrary to the provisions of the Copyright Amendment Act 1842, but subject to the colony providing ‘reasonable protection' for British authors. In general this ‘protection' took the form of a royalty that was to be collected and redistributed to the copyright owners of the same (see: uk_1847). The draft Convention produced in September 1884 threatened to disrupt this existing arrangement in that in provided that "[e]very pirated work may be seized on importation into those countries of the Union where the original work has the right of legal protection"; Article XIII, Draft Convention, Sept. 1884. In the final version of the Berne Convention this was altered slightly to read as follows: "Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection"; Switzerland, No.3, 16.

[78] In general, see Bently and Sherman, 318-25.

[79] J. Pauncefote to Sir R. Herbert, 4 March 1886, in Switzerland, No.2, 3.

[80] Article XIX, Draft Convention, Sept. 1885; see Ricketson, 788.

[81] J. Pauncefote to Sir R. Herbert, 4 March 1886, in Switzerland, No.2, 3. This suggestion was taken directly from Adams and Bergne's report of 25 Sept. 1885, which in turn had relied upon the recommendations of the Report of the Royal Commission (1878).

[82] Routledge v. Low (1868) 3 LTR 100.

[83] About this decision The Athenaeum observed as follows: "The result of this opinion of the House of Lords is very disastrous, and justly creates great dissatisfaction in the Colonies and India; it has either destroyed all copyright property in the numerous works which, since 1842, have been first published there, or rendered such property comparatively worthless; and this hardship is increased by the fact that, since 1842, it has been and still is compulsory upon all publishers in the British dominions gratuitously to send one copy of every book published by them to the British Museum, and four to the Libraries of Oxford, Cambridge, &c. The anomaly and injustice of such a state of our copyright law become the more apparent when it is remembered that, under the International Copyright Conventions entered into by England with France, and most of the other chief European states, works first published in France, &c., have long been, and may still be, protected from piracy in the United Kingdom or any other part of the British dominions"; The Athenaeum, 20 Nov. 1869, quoted in S. Nowell-Smith, International Copyright Law and the Publisher in the reign of Queen Victoria (Oxford: Clarendon Press, 1968), 87.

[84] Report of the Royal Commission, xiii. The Report continued: "In truth a colonial author is placed even in a worse position than a foreign author who is the subject of a country with which we have an international copyright convention. For example, a French author can publish in France, and subsequently, upon the performance of certain conditions, such as registration, secure himself against piracy of his work throughout the British Empire, while the colonial author can neither secure his property in the United Kingdom nor France, unless he first publishes in the United Kingdom"; ibid.

[85] J. Pauncefote to Sir R. Herbert, 4 March 1886, in Switzerland, No.2, 4.

[86] Journal of the House of Commons, 141 (1886): 127 (29 March).

[87] Seville, 71.

[88] Mr. Bryce to Mr. Bramston, 8 April 1886, in Switzerland, No.2, 6.

[89] Ibid., 6, 7.

[90] Ibid., 7.

[91] Ibid., 8-11.

[92] Journal of the House of Commons, 141 (1886): 308 (25 June).

[93] Article II.

[94] International Copyright Act, 1844, 7 & 8 Vict., c.12, s.6 (see: uk_1844); International Copyright Act, 1886, s.4(1).

[95] International Copyright Act, 1852, 15 & 16 Vict., c.12 (see: uk_1852).

[96] Article III.

[97] See: uk_1852.

[98] 1886 Act, s.5(1)(2).

[99] Ibid., s.5(3); this was in line with A.VI of the Convention.

[100] Article V. About this decision on the part of the legislature, Bergne writes as follows: "It was recognised that the translation of a book stands to it in much the same relation as an engraving does to a picture. It was further considered that, as in regard to International Dealings with continental States translation was the principal form of reproduction, it was idle to secure copyright to the original work for an extended term, whilst the protection accorded to it in translation should be allowed to expire at an earlier date. At the same time it was felt that some provision should be made to secure to the British public the possible benefit of at least some translation of any work within a reasonable time ... It was therefore considered that extended rights would enable the author to make more satisfactory, because more remunerative arrangements, and so to supply the public with a better article at probably a less price. The effect being anticipated that a large business in translations, hitherto dormant, would speedily spring up under more congenial legislation"; Bergne, 27-28.

[101] Ricketson, 384-86.

[102] 1886 Act, s.8(1).

[103] Ibid., s.8(1)(a)(b).

[104] Ibid., s.9.

[105] Ibid., s.8(4).

[106] Bergne, 30-31.

[107] The Earl of Rosebery to Mr. Adams, 2 July 1886, ibid., 14.

[108] Ricketson, 78.

[109] Switzerland, No.3, 9-10.

[110] Liberia eventually acceded on 16 October 1908; see Ricketson, 79.

[111] For a transcript, see W. Briggs, The Law of International Copyright (London: Stevens & Haynes, 1906), 766-68; the Order was deemed to come into operation on the 6 December, 1887.

[112] This was in accordance with A.XX which provided that "[t]he present Convention shall be put into force three months after the exchange of the ratifications, and shall remain in effect for an indefinite period until the termination of a year from the day on which it may have been denounced".

[113] Bergne, 14; see also Ricketson, 78-79.

[114] Ricketson, 79.

[115] Bently and Sherman, 315.