Bilateral treaty between Switzerland and France, Zürich (1884)

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Citation:
Bilateral treaty between Switzerland and France, Zürich (1884), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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Chapter 1 Page 1



V.


CONVENTION


between


Switzerland and France for the bilateral protection

of literary and artistic property.


            Concluded on 23 February 1882
            Ratified by Switzerland on 2 May 1882.
            Ratified by France on 11 May 1882

________________________

[col.1]

The Federal Government
of
Switzerland,

      after having seen and examined
the convention for the bilateral
safeguarding of literary and
artistic property, which was concluded,
on the proviso of ratification, in Paris,
on 23 February 1882, by the pleni-
potentiaries of the two states - a
convention which has been approved by
the National Council* on 24 April
1882 and by the Council of States**
on the 27th of the same month, and
whose tenor is as follows:

____________________

[col.2]

The President
of the French Republic

to all those who will see these
the present text,
Greetings.


      A Convention having been
signed on 23 February 1882 between
France and Switzerland, for the
bilateral safeguarding of literary
and artistic property:
      The tenor of the convention is as follows:


_______________

* The lower house of the Swiss Federal Assembly

** The upper house of the Swiss Federal Assembly


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150

      The Federal Government of
the Swiss Confederation

            and

      the President
of the French Republic,

      seeking to reciprocally
guarantee the protection of
ownership of literary and
artistic products in France
and in Switzerland, have
decided to conclude a treaty
for this purpose and have
named as their plenipotentiaries
the following persons:

      The Federal Government of
the Swiss Confederation has appointed:

Mr J. C. Kern, Envoy extraordinary
and plenipotentiary
minister of the Swiss
Confederation in Paris;

Mr K. E. Lardy, DCL,
Councillor to the Swiss
Embassy in Paris;

            and
      The President
of the French Republic has appointed:

Mr C de Freycinet, Senator,
President of the Cabinet
Council, Minister of Foreign
Affairs;

Mr Tirard, deputy,*
Minister of Commerce;

Mr Maurice Rouvier, deputy,*
former Minister of Commerce
and of the Colonies;

      who, after having notified each
other of their full powers of attorney,
which were found to be in proper and due form,
have come to an agreement about the following articles:


________________________

* i.e. member (député) of the French National Assembly


Chapter 1 Page 3


151

            Conditions
which are to apply in France.

            Article 1.

      The authors, or, as the case may
be, originators of books, pamphlets,
dramatic works, or other
written works, of musical compo-
sitions or arrangements,
drawings, illustrations,
paintings, works of sculpture,
engravings, lithographies, photographs
and all other such products
from the realm of literature
or art, which are published in
Switzerland for the first time,
are to enjoy in France the advantages
which are currently accorded by
the law there, and any that happen to
be accorded in future, to the proprietor
of literary or artistic works; and
against any encroachment on their
rights they will receive the
same protection and the same
legal assistance as if that encroachment
had been committed with regard to
the authors of works which were
published for the first time
on the territory of the French
Republic.
      However, these advantages
will be guaranteed to the authors
of such works only for as long
as their rights are protected in
their own country; and the benefit
of such advantages in France cannot
be claimed for a longer term
than that which applies to them
in Switzerland.
      The property in musical
works also extends to the
so-called arrangements of themes
which have been drawn from these
very works.
      Every privilege and advantage
that, with regard to the property
in works of literature and art,


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152

as these have been defined in
the present article, France
concedes to another country, or
which it may do so in future,
are by virtue of law also to
be enjoyed by Swiss citizens.

            Article 2

      It is permitted to publish
in France extracts or whole
sections from works which have
appeared for the first time in
Switzerland, insofar as these
publications have been specially
designed for teaching purposes.

            Article 3

      The enjoyment of the
advantages offered by Art. 1
depends on having legally
acquired in Switzerland the
property in literary or
artistic works.
      For books, brochures or
other written works, stage plays,
illustrations, maps, copper engravings
and other kinds of engraving, lithographies,
photographs, musical works
or other analogous literary or
artistic products, which are published
or edited for the first time in
Switzerland, the exercise of
the right of possession in France is,
moreover, conditional on the formality
of registration which is to be fulfilled
there beforehand - namely, at the Ministry
of the Interior. This registration will
be carried out on receipt of a written
application from the interested parties or
from their mandatories, whereby this
application is to be addressed either to
the aforementioned Ministry or to
the Chancellery of the Embassy of the
French Republic in Bern.
      The application must be made
within three months of the publication


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153

of the work in Switzerland.
      For works which appear in
parts, this three-month period
shall be taken to begin only after
the last instalment has been
brought out.
      This registration, which
will be done in books specially
kept for this purpose, is to
be completely free of charge.
      The interested parties will
receive a certificate confirming that
the registration has taken place; and,
save for possible stamp duties, this
certificate is also to be delivered
free of charge.
      This certificate will indicate
the exact date on which the application
was made. It will be legally valid
across the whole territory of the
Republic and will confirm the exclusive
right of possession and of reproduction
for as long as no one else is able
to prove his right in court.

            Art. 4
      The stipulations of Art. 1
are also to apply to the
staging or performance, be it
in the original language or in a
translation, of dramatic or
musical works which are published,
staged, or performed for the first
time in Switzerland.

            Art. 5
      The translations of native [Swiss]
or foreign works are treated exactly
the same as original works. Accordingly,
such translations are to enjoy,
as far as their unauthorised reproduction
in France is concerned, the protection
stipulated by Art. 1. Nevertheless,


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154

the purpose of the present
article is, of course, simply
to protect the translator with
regard to the translation which
he has done of the original
work, and not, say, to
concede the exclusive right
of translation to the first
translator of any work written
in a modern or ancient language,
except for the case and scope
outlined in the following
article.

            Art. 6
      The author of any work
published in Switzerland is alone
to enjoy the privilege that
for a period of ten years no
translation of his work that hasn't
been authorised by him may be
published in the other country.
This period will be taken to begin
from the day on which the
application for registration, in
accordance with Art. 3, has been
made, and, what is more, under
the following conditions:

1) the original work must be
registered in France by making
an application within three
months of its first publication
in Switzerland, in accordance
with the provisions of Art. 3;

2) the author must indicate at
the head of his work that he
is reserving for himself the right
of translation;

3) the given translation, authorised
by him, must have appeared in full
within three years from the date of
the original work's registration in
the manner described above;



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155


4) the translation must be published
in either of the two countries and,
moreover, be registered in accordance
with the provisions of Art. 3
      For works which come out in
parts, it is sufficient if the
author's declaration that he is
reserving for himself the right of reproduction
is included in the first instalment.

As for the publication and
staging of translations of
dramatic works, the author who
wishes to reserve for himself
the exclusive right stipulated in
Art. 4 and in the present article,
must have the translation published
or performed within three years
from the publication or performance
of the original work.

      Swiss authors are to enjoy
in France, as far as the right
of translation is concerned, the
same advantages which are established,
now and in future, in favour of
French authors.
      The high contracting parties
also agree that Swiss authors or
their legal successors are in all
cases to be entitled, with regard
to the right of translation of their
works and the right of performance
of translations of plays, to the
privilege of receiving the same
treatment as the country most
favoured in this respect.
      The rights accorded by the
present article are subject to the
conditions which are imposed on
the author of an original work by
the present convention.


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156

            Art. 7
      If the French author
of one of the works listed in Art. 1
has ceded his right of publication or
reproduction to a Swiss publisher on
the proviso that the copies or
editions of the work thus published
or reproduced may not be sold in
France, then any copies or editions
which are introduced into the latter
country are to be regarded and treated
as unauthorised reproductions.
      The works to which this
condition is to apply shall indicate
on their title-page and cover
the following words: "Edition prohibited
in France (in Switzerland) and authorised
for Switzerland (for France) and abroad".

            Art. 8
      The legal appointees or
legal successors of authors, translators,
composers, illustrators, painters,
sculptors, copper engravers, lithographers,
photographers, and so on, are in every
respect to enjoy the same rights as the
present convention affords to the
authors, translators, composers,
illustrators, painters, sculptors,
copper engravers, lithographers and
photographers themselves.

            Art. 9
      The stipulations stated in
Articles 1 and 5 of the present convention
notwithstanding, articles which are
taken from newspapers or compilations
published in Switzerland



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157

may be reprinted or translated
in the French newspapers or periodical
compilations, as long as the source
from which they have been drawn
is indicated.
      This right, however, does not
extend to the reproduction of articles
which appear in newspapers or periodical
compilations published in France whose
authors have explicitly declared, in the
newspaper or the compilation in which
their articles are included, that
they forbid their reproduction. But
under no circumstances may this
prohibition apply to articles of a
political nature.

            Art. 10
      The import, export, sale
and circulation of illicitly
reproduced works and objects, as
have been defined in detail in
Articles 1, 4, 5, and 6, is,
excepting the conditions of Art. 11,
forbidden in France, irrespective of
whether these reproductions
originate from Switzerland or from
any other foreign country.

            Art. 11
      The French government will, by
means of administrative public directives,
take the necessary measures in order to
preclude all complications that may arise
for French publishers, printers, or book-
sellers from the ownership and sale of
new editions of such works which - though
they constitute the property of Swiss
citizens and have not yet become
public property - were published or printed
by the former before the present
convention came into force.



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158


            Art. 12
      Books which are imported from
Switzerland in legitimate fashion
are, both for entry and for direct
transit, as well as for depositing
under customs seal, to be accepted
by all customs-houses in France
which are currently open [for such
goods] or that are opened in future.
      If the interested parties so wish,
the books declared for entry will
be forwarded directly to the Ministry
of the Interior in Paris, so that
they can be subjected there to the prescribed
verification procedures, which are to take
place no later than fourteen days [after
their arrival in Paris].

            Art. 13
      The provisions of the present
convention are not to impair in any
way the right of the French government
to take legislative or interior police
measures, so as to permit, control, or
forbid the circulation, performance,
or exhibition of works or productions
of any kind, with regard to which the
competent authority would be entitled
to exercise this right.
      The present convention leaves
intact the right of the French government
to forbid the import of such books into
its territories which, as a result of
internal legislation or of provisions
which have been agreed with other powers,
are declared to be imitations or which should
happen to be declared thus in future.

            Art. 14
      The manufacture and the sale
of instruments which are used for


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159

the reproduction by mechanical means
of musical tunes that are private
property will not be regarded in France
as equivalent to the counterfeit
of musical works.

            Art. 15
      A violation of the provisions
contained in the preceding articles
will result in confiscation of the
counterfeit objects, and the courts
will apply the legally stipulated
punishments in the same way as if
the violation had affected a French
work or product.
      The characteristics which
identify a counterfeit are to be
determined by the French courts on
the basis of the legislation which
is in force in the territory of
the Republic.


            Conditions which
are to apply in Switzerland.

            Art.16
      The provisions of the preceding
Articles 1, 2, 3, 5, 6, 7, 8, 9,
11, 13, 14, and 15 are likewise to be
applied in Switzerland, by virtue of
reciprocity, to the property in
literary or artistic products duly
acquired in France, with the exception,
though, of the conditions laid out in
Art. 18 below.

            Art. 17
      The Swiss courts which are
competent, be it for compensation in
civil suits, be it for the punishment
of offences, will apply,


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160

across the whole territory of the
Confederation, the provisions of
the preceding Art. 16, as well as
those of the following Art. 18 to 31,
in favour of the French proprietors
of literary and artistic works, or
their legal successors.
      It is understood, albeit on the
proviso of the guarantees stipulated
in Art. 34, that these provisions
can be replaced by any legislative
regulations which the Swiss federal
authorities may happen to enact
with regard to literary and artistic
property, though always on the basis
of equal treatment of foreigners
and Swiss citizens.

            Art. 18
      In order to guarantee in
Switzerland for all literary and
artistic works, as well as for authorised
translations, the protection stipulated
in Art. 1, and to ensure that the authors
or publishers of these works can have
due recourse to the Swiss courts for the
purpose of prosecution of the counterfeiters,
it is sufficient, by way of a slight
modification of Art. 3 and 6, if the afore-
mentioned authors or publishers are able
to prove that in France they are entitled
to the right of possession. This is done by
presenting a certificate from the Office for
Printed Matter at the Ministry of the Interior,
attested by the Swiss Embassy in Paris and
confirming that the work in question
enjoys legal protection in France against
counterfeit or unauthorised reproduction.

            Art. 19
      The authors of books,
brochures, plays for the stage,


Chapter 1 Page 13


or other written works, musical
compositions or arrangements,
drawings, illustrations, paintings,
works of sculpture, engravings,
lithographies, photographs and all
other such products from the realm
of literature or the arts, which
are published in France for the first
time, are entitled to the guarantees
stipulated in the following articles
for the safeguarding of their
property rights.

            Art. 20
      The authors of dramatic
or musical works which are published
or performed in France for the first
time will enjoy in Switzerland, as
far as the staging or performance of
their works - be it in the original
language or in translation - the same
protection which the laws in France
currently accord , or which they may
accord in future, to Swiss authors
or composers for the staging or
performance of their works.

            Art. 21
      The property right acquired in
Switzerland, in accordance with the
provisions of the preceding articles,
to the literary or artistic works
mentioned in Art. 19 remains the
author's for life. If the latter should
die before the thirtieth year counting
from the date of the first publication,
then this right will continue to


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162

exist for the benefit of his legal
successors for the remainder of this period.
      If the publication did not take
place during the author's lifetime, then
his heirs or legal successors have, for the
space of six years after the author's death,
the exclusive right to publication of the
work. If they make use of this right, the
term of protection lasts for thirty years
from the date of this death. The duration
of the property right to translations, on
the other hand, is, in accordance with
the stipulations of Art. 6, limited to
ten years.

            Art. 22
      Any edition of a literary or
artistic work falling into the
category described in Art. 19 which
is printed or engraved contrary to
the provisions of the present convention,
is to be punished as a reprint.

            Art. 23
      Whosoever imports, sells,
or offers for sale on Swiss territory
objects which he knows to be counterfeit,
no matter where these may come from,
is liable to the punishments stipulated
for reprinting.

            Art. 24
      Every reprinter is to be punished
with a fine of at least 100 francs,
up to at most 2,000 francs;
whereas the seller is to pay a fine
of at least 25 francs, up to at most
500 francs. In addition to this, they
are also to be sentenced to pay
indemnities to the owner for the
losses caused to him.


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163

      Confiscation of the reprint edition
is to be imposed on both the reprinter
and the importer and seller of it. In any
case the courts can, on request of the
party which instituted legal proceedings,
order that the counterfeit objects be
handed over to the latter, the value of
these then being deducted from the
compensation sum to which it is entitled.

            Art. 25
      In the cases envisaged by the
preceding articles the proceeds from
the confiscated objects are to be
handed over to the proprietor (as part
of the indemnities which he is entitled
to); the amount of compensation which
he is further entitled to is to be
determined by standard legal practice.

            Art. 26
      The proprietor of a literary
or artistic work can, by means of an
order from the competent authority,
arrange, with or without confiscation,
for a detailed catalogue or a precise
description to be drawn up of those
objects which he considers to have
been counterfeited to his detriment
and in violation of the provisions
of the present convention.
      This order is to be issued on
the simple request [of the proprietor]
and on presentation of the report
which certifies the deposition of the
literary or artistic work. If necessary,
it is to be accompanied by a description
provided by an expert.
      If confiscation is requested,
the judge can demand from the plaintiff
that he give a security in advance
before the confiscation is ordered.



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164

      The owner of the inventoried
or confiscated objects is to be
issued a copy of the judicial order and,
where appropriate, also with a copy
of the certificate confirming the
security given by the plaintiff,
all this on pain of invalidation [of
the action?] and liability to pay
damages [on the part of the plaintiff]

            Art. 27
      If the plaintiff should neglect
to take legal action within fourteen
days, then the making of an inventory
or confiscation are invalidated de jure,
without detriment to the indemnities
which can be claimed in any case.

            Art. 28
      Prosecution before the Swiss courts
for offences defined in the present convention
will only take place on request of the
injured party or its legal successors.

            Art.29
      Actions regarding the counterfeit
of literary or artistic works
are in Switzerland to be brought before
the court of the district in which
the unauthorised reproduction or the
sale thereof took place.
      Civil cases are to be judged by
summary proceedings.

            Art. 30
      The punishments established by
the present convention may not be
accumulated. Accordingly, for all
offences which precede the first
institution of criminal proceedings,
it is the severest punishment alone
which is to be imposed.



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165

            Art. 31
      The court can arrange for notices of
its verdict to be put up in the places
determined by it, as well as for the text
of the verdict to be inserted, fully or in
the form of extracts, into the
newspapers it chooses - all this at the
expense of the guilty party.

            Art. 32
      The punishments specified in
the preceding articles can be
doubled in cases of recidivism.
Such a case is taken to have occurred
if in the five preceding years a
conviction of the defendant for
a similar offence has taken place.

            Art. 33
      In mitigating circumstances the
courts can reduce the punishments to
which culprits are sentenced even to
below the prescribed minimum, and they
may even commute a sentence of imprisonment
to a fine. However, on no account
are they to go below the simple
police punishments.

            Art. 34
      The present convention
comes into force on 16 May 1882, and
is to remain valid until 1 February
1892. In the case that neither of
the high signatory parties should
make known, a year before the expiry
of this term, its intention to
withdraw from this convention,
the latter is to continue to remain
valid for a further year after the
date on which one of the signatories
does express its intention to revoke it.


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166

      However, each of the high
signatory parties reserves for
itself the right to revoke the
present convention before
1 February 1892 if the
legislation in its respective
country should be changed in
such a way as to make a revision
of it seem desirable. All the
same, the effects of such a
revocation will not become
valid until after 12 months
from the date on which the
revocation was announced.

            Art. 35
      The present convention
is to be ratified, and the deeds of
ratification are to be exchanged
before 12 May 1882 at the same time
as those of the trade agreement
which was concluded between the two
high signatory parties on today's
date in Paris.
      In witness whereof, the
plenipotentiaries from both sides
have signed the present convention
and put their seals to it.
      Done in duplicate in Paris,
on 23 February 1882.

            (seal) Kern.
            (seal) Lardy.
            (seal) C. de Freycinet.
            (seal) P. Tirard.
            (seal) M. Rouvier.


[The Federal Government...]
      declares that the above
convention is ratified and has
the legal force in all its sections,
promising, in the name of the
Swiss Confederation, to observe
it conscientiously at all times,
for as long as this depends on
the latter.



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167

[col.1]

      In witness whereof,
the present pages have been signed
by the President and the Chancellor
of the Swiss Confederation and furnished
with the Federal Seal.

      Done thus at Bern, the second
of May, One thousand eight hundred and
twenty-eight (2 May 1882).

      In the name of the Swiss
Federal Government,

            The President
            of the Confederation
:

(seal)             Bavier.

            The Chancellor
            of the Confederation
:

                   Ringier.

________________

[col.2]

      In witness whereof, We have
provided the present pages with the Seal
of the Republic.

            At Paris, 11 May 1882.


                  Jules Grevy.

(seal)

                  On behalf of the
                  President of the Republic:
                        C. de Freycinet.


Note: The exchange of ratifications took place in Paris, on 12 May 1882, between the Swiss Envoy in Paris, Dr Kern, and the French Minister of Foreign Affairs and President of the Council, Mr C. de Freycinet.





Translation by: Luis Sundkvist

    

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