Stravinsky’s burning issue with the Berne Convention

Wars touched the lives of millions of people in more ways than one can imagine. The life of Igor Stravinsky, a Russian-born composer, pianist and conductor, was no exception. He became an overnight composing sensation with the premiere of his ballet Firebird in Paris on 25 June 1910. Over the next four years Stravinsky and his family lived in Russia during the summer months, during which time he composed further ballets, including Petrushka and The Rite of Spring for the Ballets Russes, and during the winter months he and his family resided in Switzerland. However with WWI looming in July, the Stravinsky family made a last trip over the Switzerland border just before national borders closed. The war and subsequent Russian Revolution made it impossible for Stravinsky to return his homeland and he only managed to set foot upon Russian soil again in October 1962.

Like most other families, Stravinsky struggled financially during WWI. The fact that his ballets were still performed in Russia brought no financial relief in the form of royalties as Stravinsky anticipated because Russia (and its successor, the USSR) did not adhere to the Berne Convention.

The Berne Convention for the Protection of Literary and Artistic Works was developed at the instigation of Victor Hugo of the Association Littéraire et Artistique Internationale under the influence of the French “right of the author” (droit d’auteur). This international agreement which was first accepted in 1886 in Berne, Switzerland not only governs copy right, but also introduced the concept that copy right exists automatically at the moment a work becomes “fixed” rather than requiring a formal registration. It further enforces the primary aim and requirement that countries must recognise copyrights held by the citizens of all other countries that are signatories of the Berne Convention. With other words, parties to the Berne Convention must treat the copyright in works of authors from other parties to the Berne Convention, the so-called Berne Union at least as well as its own nationals.

Article 3 of the Berne Convention applies to both nationals and residents of countries that are party to this convention and to works first published or simultaneously published (within 30 days as per Article 4) in a country that is also a party to the convention. This convention thus relies of the concept of “country of origin”, meaning that when a work is published in a country that is party to the convention and nowhere else, that would be the country of origin. The ballets that Stravinsky was commissioned to composed for Ballets Russes were first performed in Russia and would Russia thus be the country of origin for these works. Only problem is: Russia was not a signatory to the Bern Convention at the time of these works being performed and did Stravinsky’s musical scores not enjoy the same copyright protection in countries that were part of the Berne Union.

The Russian Federation’s accession of the Berne Convention only became effective on 13 March 1995 and all Russian or Soviet works that were copyrighted on that date became copyrighted in all other Berne Union countries on that date.

However, in its declaration of accession, Russia made a reservation regarding article 18 of the Berne Convention to the effect that this convention “shall not extend to the works which, at the date of entry into force of the said Convention in respect of the Russian Federation, are already in the public domain in its territory.” This reservation effectively denied the retroactivity of the Berne Convention for foreign works within Russia. This was of some importance because when the USSR had joined the UCC, foreign works published within Russia before 27 May 1973 had never been eligible to copyright in the Soviet Union or in Russia. In terms of Article 18(2) of the Berne Convention, these works should have become copyrighted in 1995 because Article 18(2) only exempted works that once were copyrighted, but on which that copyright had already expired, which didn’t apply to pre-1973 foreign works in Russia. The reservation made by Russia used a slightly different phrasing, just stating that works that were in the public domain in Russia in 1995 would not be re-protected. As pre-1973 foreign works were not copyrighted at all and thus in the public domain in Russia in 1995, such foreign works remained in the public domain in Russia.

One of the methods used by Russian authors to have their works copyrighted outside of the Soviet Union was the smuggling of manuscripts out of the USSR to have the work first published abroad in a country that was a signatory of the Berne Convention. The ultimate an aimed for result was that such works would be granted copyright protection in all other Berne Union countries after these works were first published in a member country. This practice, known as tamizdat in the Soviet Union could result in serious repercussions for the authors in the USSR but was still employed as one of the few ways the governmental censorship could be bypassed.

Fortunately with Russia’s accession to the Berne Convention, Soviet and Russian works that were copyrighted in Russia in 1995 became copyrighted outside of Russia as well and by virtue of the retroactivity of the current Russian Copyright Law of 1993, this also included many pre-1973 Soviet works. With Stravinsky’s death on 6 April 1971 this means that his musical compositions will at last enjoy the copyright protection it deserves. May his soul rest in peace.

By Marietjie Botes