Bonjour.
Today, I want to talk about something French. No, not wine. Not even cheese. But the French language, and my hobbyhorse: international copyright law.
Here’s the story of why the beating heart of the Berne Convention still pulsates in French. As Article 37 of the Convention clarifies, while the Convention is drafted in both French and English, in the event of divergence, the French text prevails.
Every time I glide through the Berne archives in French, I’m reminded: this isn’t just a few documents. Nay. The entire “Travaux préparatoires”—used to clarify the meaning of provisions—is in French, especially until 1948. The rest? Translations.
This causes a peculiar anxiety—inadequate to stop one from reading/translating, but enough to remind one that every sentence understood/translated into the English language is contingent and fallible. Such is life. Alas …
But how did this happen? Let’s unspool the tale. But first, why does it matter?
Why does this story matter?
Two reasons, at least.
First, given that these archival texts in French carry interpretive authority under the Vienna Convention, it can be useful for scholars, particularly those engaging with policy or treaty negotiations, to contest and corroborate the meanings of provisions of the Berne Convention.
Second, a monolingual or hierarchically multilingual archive does far more than record events. It shapes thought, too. It decides who reads with ease and who squints, dictionary in hand or translation tool whirring in the background.
With this context, the archive exhales, and the story unfolds …
French as Diplomacy’s Darling
Since at least the eighteenth century, international legal parleys have unfolded en français. ‘Twas the language in which law was negotiated, quarrelled over, and, of course, archived. (see generally, here)
This is visible in 1858, at the Brussels Congress that laid the groundwork for what would later become the first international copyright treaty. French stood uncontested as the juridical lingua franca (quite literally, hmm…). States were free, of course, to speak in their own tongues. But only by the grace of an interpreter, or by the submission of a dutiful written note in French. Voila … you could speak your local language, but the legality spoke French.
But time is rarely kind to monopolies.
As the twentieth century unfolded—with its world wars, political realignments, and collapsing empires—the linguistic hegemony of French began to wobble. By the end of the First World War, the murmurs were no longer polite whispers. In 1919, the Treaty of Versailles and the Covenant of the League of Nations broke precedent by recognising both English and French as official languages. Power was shifting, and new actors were joining the discourse.
And with them came new linguistic ambitions: to admit other European languages, especially English, into the inner sanctum of international law. The Berne Convention was not immune to these scenes. By the time the Brussels Conference of 1948 took place, the language question no longer lingered as a matter of conversational convenience. It demanded, in the UK delegates’ words, urgent attention.
To be clear, while I focus on the Berne Convention, later international copyright instruments (UCC, TRIPS, etc.) emerged in different geopolitical environments, giving English, alongside other languages, authoritative status. See generally, here)
Note: What follows draws on the discussions at the 1948 Revision Conference, recorded in Union Internationale pour la Protection des Œuvres Littéraires et Artistiques, Documents de la Conférence réunie à Bruxelles du 5 au 26 juin 1948 (Bureau de l’Union Internationale pour la Protection des Œuvres Littéraires et Artistiques, Berne 1951). Professors Sam Ricketson and Jane Ginsburg have made available an English translation of the records of the 1948 revision on the OUP website, though they are incomplete. As translation, on which I base this post, inevitably leaves room for doubt, I claim no absolute accuracy. If anything appears unclear or doubtful, please do let me know.
The Language Question(s)
It was Britain that first broached the issue in the 1948 Brussels Revision conference, proposing that a new Convention text be drafted in both French and English, with both languages enjoying equal authority. The British delegate insisted this was not about the ‘relative merit’ of languages, but about a practical problem: how to ensure the Convention works most effectively for the Berne Union.
The language question entailed two issues, however.
The first was substantive. That is, which (European!) language, if any, should be admitted into the Berne Convention’s linguistic sanctum? And under what conditions?
The second was procedural: how was such an admission, which may amount to a change in the convention, to be effected? Simply put, the question is whether the inclusion of a new authoritative language requires unanimity or a majority decision.
Substantive Anxiety: Which Language Counts?
Portugal, led by Mr Dantas, visibly piqued by the British proposal, expanded its scope, arguing that if linguistic equality was the goal, why not have multilingualism? And, it proposed that Spanish, French, English, Portuguese, and Italian all be recognised as official languages of the Convention, with equal authority. He also stated that while French exclusivity had long been a “Berne tradition,” it had been questioned since the 1920s. And thus Dantas heralded a “future American tradition.”
Spain, led by Mr Forns, joined the debate. The real question, for Spain, was not about French and/or English, but whether a single official language (French) should be maintained or multiple official languages should be allowed. Accordingly, Spain proposed drafting the Convention in French, English, and Spanish, with all texts verified by the Berne Bureau becoming official and authoritative. Though French would continue to be the working language of discussion.
Then came a telling take from the Indian delegate, Mr Mani, who was scheduled to depart Brussels soon.
Mani said that both French and English were foreign tongues to India. For purely practical reasons, he requested that English be accepted alongside French as an official language of the Conference. (Sidenote: India, a very new independent nation then, was having funding issues to send a delegate to Brussels. And this likely impacted Indian participation in the convention. I’ll share that little tale another day.)
Hither entered France, with its delegate, M. Marcel Plaisant, rising to challenge the British proposal.
Plaisant pronounced that his stance was guided by “the interest of greater understanding among the peoples represented … and… a wish that the Act to be signed … have absolute authority, shielded from divergent interpretations.” He noted that if English were made the official language, “many other languages of important cultures would have the right to a version of the Convention in their own tongue.”
To prove his point, Plaisant cited numerous academics and writers who had long extolled French, offering historical examples of its use in diplomacy and law. For him, French should be adopted as it’s the “Latin of modern times”—a language at everyone’s disposal, belonging not to one nation alone, but to all.
Procedural Problem
France also challenged Britain procedurally. The French delegate argued that admitting English required unanimous approval. Britain disagreed, saying that unanimity was required only when revising substantive provisions—not for deciding the language of drafting. He quoted the 1934 London Conference for the Protection of Industrial Property, where the decision to draft the Convention in both French and English was taken by simple majority.
He further maintained that the language question fell within the competence of each Conference’s rules of procedure, and that such matters ought not to be resolved in an unduly rigid fashion. The British position found support from Australia.
Britain then clarified (perhaps sensing mounting resistance?) that it was not seeking to revise the rules of procedure at all, but merely to supplement them on a point whose resolution had previously been deferred. (well … isn’t that what revision is?)
Re-enter France, with panache. Plaisant quipped: “If we were to follow the British suggestion… You would have a Convention drafted in two languages, without any explanation. This would be contrary to all precedent… From the moment a Convention is drawn up in more than one language, it becomes essential to explain the status of the texts… so that those who interpret it may find sufficient guidance.” Thus, he insisted that any multilingual drafting must clarify the authentic status of French.
The British Delegation requested time to obtain further instructions from its Government. Eventually, a compromise emerged. The language provision would appear in both the rules of procedure and the Convention itself.
The endgame – a middle path?
Thusly, three coteries emerged.
First, France, with support from Austria and Hungary, demanded unilingualism. Per this club, the Convention should be drafted solely in French, with the French text alone enjoying authoritative status.
Second, Britain, with support from Canada, Greece, and Syria, demanded bilingualism, proposing that the Convention be drafted in both French and English, with both texts accorded equal authenticity. Although the Syrian delegate added a caveat: should the Conference move towards multilingualism, Arabic should be admitted as an official language.
Third, Portugal, backed by Spain and Brazil, advocated multilingualism, i.e., the Convention be drafted in several languages, with all texts enjoying equal authoritative status.
No camp quite got everything it wanted, however.
While a majority favoured the British proposal for bilingualism, several hesitated to accept it as it was. This unease caused a conciliatory turn. Thanks to Belgium, Italy, and Sweden. In principle, these countries accepted bilingualism. But in practice, they insisted that in cases of divergence or interpretive doubt, the French text must prevail.
And that compromise carried till the day. English was admitted, but French prevailed. The linguistic fate of Berne was thus sealed. Bilingual in appearance, hierarchical in effect. Voilà …
And that is the story of Berne’s official language(s).
Thanks to Daanish Naithani, Avani Marudwar, Swaraj Barooah, and Prof. Lionel Bently for reading the draft and sharing their thoughts.
See you in the next post.
