Berne Convention - International Copyright

The Berne Convention and the Future of International Copyright in the Age of AI

An overview of recent debates and challenges facing the Berne Convention in light of artificial intelligence (2025).

The Berne Convention for the Protection of Literary and Artistic Works, first adopted in 1886, remains the cornerstone of international copyright law. Its principles—such as automatic protection without formalities, national treatment for foreign authors, and a minimum copyright duration (typically the author’s life plus 50 years)—are followed today by over 180 countries.

But in 2025, the Convention faces fresh challenges, particularly with the rapid growth of artificial intelligence and the way creative content is generated, shared, and reused.

AI-Generated Works: Who Owns the Copyright?

One of the most pressing questions in copyright law today is how to treat works created by AI systems. The Berne Convention assumes that every work has a human author, but what happens when an algorithm writes a novel, paints an artwork, or composes music?

Scholars are actively debating whether AI-generated works should qualify for copyright protection at all, and if so, who should be considered the “author”—the programmer, the user, or the AI itself? Recent research papers suggest that the Convention may need reinterpretation or even reform to address this gap.

The UK’s “Opt-Out” Proposal and International Tensions

In the UK, lawmakers are considering a controversial reform: allowing tech companies to freely use copyrighted works for AI training unless creators explicitly “opt out.”

Critics argue that this proposal could violate the Berne Convention, which prohibits requiring authors to perform any formalities (like registering or objecting) in order to protect their rights. A prominent copyright barrister, Nicholas Caddick KC, has warned that such reforms could lead to legal challenges at the international level.

The Three-Step Test in the Spotlight

Another key principle of the Berne Convention is the three-step test, which limits exceptions to copyright. Under this rule, exceptions must:

• Apply only to special cases,
• Not conflict with the normal exploitation of the work, and
• Not unreasonably prejudice the author’s legitimate interests.

This test is increasingly being invoked in debates about text and data mining, AI training, and fair use. The challenge lies in balancing the rights of creators with the demand for innovation in machine learning and digital technologies.

What the Future May Hold

The Berne Convention was drafted long before the internet, let alone artificial intelligence. While its principles have stood the test of time, the digital age is testing their limits.

• If opt-out systems become common, they may be challenged as incompatible with Berne’s prohibition on formalities.
• Countries may eventually push for a new protocol or treaty to clarify how copyright applies to AI-generated works.
• Without global consensus, we could see a patchwork of national laws—creating uncertainty for creators, platforms, and AI developers alike.

Conclusion

The Berne Convention continues to serve as the bedrock of global copyright protection, but as technology evolves, so too must the law. Artificial intelligence is forcing lawmakers, courts, and scholars to rethink the very definition of authorship. Whether through reinterpretation, national reforms, or new international agreements, the coming years will shape how copyright adapts to the realities of the AI era.