COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS, THE STOCKHOLM PROTOCOL AND THE PARIS REVISION* ANNEX A CHART I. TRANSLATION RIGHTS [*The following tabular summary of the "Paris Revision" relates to the Paris Revision of the Berne Convention. Substantial differences between this Revision and the Paris Revision of the Universal Copyright Convention are indicated by asterisks and explained by "Notes" appearing at the conclusion of the tables. Where no note is indicated, the summary of the Paris Revision serves as a summary of the concessions made to developing countries in the Universal Copyright Convention] Existing Berne Conventions (Rome, 1928 and Brussels, 1948) NO CONCESSIONS Despite Convention recognition of exclusive translation rights, any country may reserve the right to allow translation of Works into its national languages without authorization or compensation if, after ten years from first publication of the original Work, an authorized translation into such language has not been published in a Union country. Other Convention countries may not retaliate against Works emanating from a country making this reservation. [Art. 25(3).] NO COMPULSORY Stockholm protocol (1967) A developing country may reserve the right to allow translation of Works without authorization or compensation if, after ten years from first publication of the original Work, an authorized translation has not been published in a Union country in the language for which protection is claimed. Developed countries may not retaliate against Works emanating from a developing country making this reservation. [Protocol, Art. 1(b)(i).] (A developed country making such a reservation under Stockholm is subject to retaliation [Text, Art. 30(2)(b)].) In addition to allowing free translation ten years after first publication, a developing country may subject the right of translation to compulsory licensing. [Protocol, Art. 1(b)(i)(ii).] The system of compulsory licensing allows the "competent authority" (not defined) of a developing country to authorize the translation of Works, and the publication of the translation, without the authority of the owner of translation rights, on certain terms and conditions. [Protocol, Art. 1(b) (ii).] All books, audio-visual Works, and other Works are subject to compulsory translation license. [Protocol Art.1(b); Text, Art. II. No special provision is made concerning application of the compulsory license to the textual portions of audiovisual Works. A compulsory translation license may be granted without restriction as to purpose. Berne Paris Revision (1971) Same as Stockholm Protocol with respect to translation into languages "in general use" in the developing country. JAppendix, Arts. V(1)(a), I(6)(b); Text, Art. 30(2).j (See note 1.) As an alternative to allowing free translation ten years after first publication, a developing country may subject the right of translation to compulsory licensing [Appendix, Art. II, V(1)(c), V(2), I(1)].** (See note 1.) The system of compulsory licensing allows the "competent authority" (not defined) to authorize the translation of Works, and the publication of the translation in printed or analagous forms of reproduction, without the authority of the owner of translation rights, on certain terms and conditions. [Appendix, Art. 1(1), 11(2)(A)]. In the case of certain audio-visual Works, the license extends to publication of the translation in audiovisual form. [Appendix Art. III(7)(6).] All Works "published in printed or analagous forms of reproudction" are subject to compulsory translation licensing. [Appendix, Art. 11(1)]. The textual portions of audio-visual Works which were "prepared and published for the sole purpose of being used in connection with systematic instructional activities" are subject to a compulsory translation license. Appendix, Art. 11(9)(c), 111(7)(b).] (The rules governing translation of the textual portions of audio-visual Works differ from those governing printed Works. In the former case, the rules follow those pertaining to the compulsory reproduction license under the Paris Revision.) Printed Works: A compulsory license for translation of printed Works may be granted only for the purpose of "teaching, scholarship or research." (Appendix, Art. 11(5).) A broadcasting organization headquartered in a developing country may secure a compulsory license to translate a printed Work if the translation is only for use in broadcasts (live or recorded) to recipients within the developing country, which broadcasts are intended exclusively for "teaching or the dissemination of the results of specialized technical or scientific research to experts in a particular profession"; and if "all uses made of the translation are without any commercial purpose." [Appendix, Art. 11(9) (a)(b).Į COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS, THE STOCKHOLM PROTOCOL AND THE PARIS REVISION*-Continued Existing Berne Conventions (Rome, 1928 and Brussels, 1948) CHART 1.-TRANSLATION RIGHTS-Continued Stockholm protocol (1967) The compulsory translation license may only be granted for translation into a "national, official, or regional language" of the licensing State. [Protocol, Art. 1(b)(iii).] The compulsory translation license becomes available three years after first publication of the original work if a translation thereof has not then been published in the licensing State into a national, official or regional language of that State, or if all previous editions of a translation in such language in that State are then out of print. (The license will be available for translation into any of the national, official or regional languages into which the original Work had not been published or in which a translation is out of print.) [Protocol, Art. I (b)(ii).] Berne Paris Revision (1971) (The compulsory translation license does not encompass the right to record or broadcast the translation. However, Convention recognition of the broadcasting right allows member countries to determine the conditions under which that right may exist, subject to compensation which may be fixed by the competent authority, and to "determine the regulations for ephemeral recordings" made by broadcast organizations. Text, Art. libis.) Audio-Visual Works (Prepared and Published Solely For Use in Connection with Systematic Instruction): Broadcasters may secure a compulsory license to translate the textual portions of such Works for the same purposes as noted in connection with their translation of printed Works. [Appendix, Art. 11(9)(c).] In other cases, a compulsory license for translation of the textual portions of such Works may be granted only for "use in connection with systematic instructional activities" [Appendix, Art. III(7)(b), I(1).] The compulsory translation license may only be granted for translation into a language "in general use" in the licensing State. [Appendix, Art. 11(2)(a), III(7)(b).] Printed Works: The compulsory translation license becomes available after a stated number of years from first publication of the original Work if a translation thereof has not then been publicized anywhere in the language concerned, or if all editions of a translation into such language are out of print. In the case of translations into a language not in general use in any developed Berne country the relevant period is one year. [Appendix, Art. II (3)(a), 11(2)(a).]. In the case of translations into a language in general use in any developed Berne country, the relevant period is three years. [Appendix, Art. 11(2)(a)] (In the case of translations into languages other than English, French or Spanish, a lesser period may be substituted by agreement between the developing country and all developed Berne countries in which the language is in general use. Appendix, Art. 11(3)(b).) Audio-Visual Works (Prepared and Published Solely For Use in Connection With Systematic Instruction): The compulsory translation license becomes available to broadcasters at the same times as govern printed Works. [Appendix, Art. 11(9)(c)(d).] In other cases, a compulsory license for translation of the textual portions of such Works becomes available (in connection with a compulsory license to reproduce the Work) after a stated number of years from first publication of the Work if copies thereof have not then been distributed in the licensing State "at a price reasonably related to that normally charged in [that] country for comparable works," or no copies have been on sale for six months in that State at "reassonably related" prices. [Appendix, Art. (7)(5), 111(2)(a)(b).] The relevant period is: three years for Works in the area of science, mathematics and technology; seven years for Works of fiction, poetry, drama and music; five years in other cases. [Appendix, Art. III(7)(b), 111(3).] COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS, THE STOCKHOLM PROTOCOL AND THE PARIS REVISION-Continued (2) "That, after due diligence on his part, he was unable to find the owner of the right." [Protocol, Art. 1(b)(ii)]. In this case: The applicant must send copies of his application to the publisher of the Work and a representative of the country of the country of the owner [Protocol, Art. I(b)(iii); and The license may not be granted until after the expiration of two months from the dispatch of copies of the application [Protocol, Art. 1(b)(iii)]. Developing countries establishing a system of compulsory translation licenses must make "due provision" to assure: (1) a "correct translation" [Protocol, Art. 1 (b)(iv)]; and (2) a "just compensation" [Id.] Payment and transmittal of compensation is "subject to national currency regulations." [Protocol, Art. I(b) (iv).] The obligation to pay compensation under a compulsory translation license terminates after ten years from first publication of the original Work. If an authorized translation has not yet been published into the language in question in a Berne country. [Protocol, Art. 1(b)(viii).] A compulsory translation license is generally "valid only for publication in the territory of the licensing State. [Protocol, Art. 1(b)(v).] Berne Paris Revision (1971) An applicant for a compulsory translation license must, "in accordance with the procedure" of the licensing State, establish either: (1) "That he has requested, and been denied, authorization" by the owner of the translation right [Appendix, Art. IV(1)]. In this case: " At the time of making his request, the applicant "shall inform' an information center designated by the publisher's country. [Appendix, Art. IV(1)]; and The license may not be granted until after the expiration of varying monthly grace periods from the applicant's compliance with the foregoing. If, during these grace periods, the owner publishes a translation anywhere into the relevant language (or, in the case of audio-visual works, causes their distribution at "reasonably related" prices in the licensing State), the license may not be granted. [Appendix, Art. II(4)(a)(i), 11(4)(b), TH(7)(b), (4)(a)(i), III(4)(c).j Or (2) "That, after due diligence on his part, he was unable to find the owner of the right." [Appendix, Art. IV(1)]. In this case: The applicant must send copies of his application by registered airmail to the publisher of the Work and an information center designated by the publisher's country [Appendix, Art. IV(2)]; and The license may not be granted until after the expiration of varying grace periods from the dispatch of copies of the application. If, during these grace periods, the owner publishes a translation anywhere into. the relevant language (or, in the case of audio-visual Works, causes their distribution at "reasonably related" prices in the licensing State), the license may not be granted. [Appendix, Art. 11(4)(a)(2), 11(4)(b), III(7)(6), III(4)(a)(ii), III(4)(b), III(4)(c).] Developing countries establishing a system of compulsory translation licenses must make "due provision" to assure: (1) a "correct translation" [Appendix, Art. IV (6)(b)]; and (2) a "just compensation that is consistent with standards of royalties normally operating on licenses freely negotiated between persons in the two countries concerned." [Appendix, Art. IV(6) (a) (i).] If national currency regulations hinder payment and transmittal of compensation, the "competent authority" shall use "all efforts" to ensure transmittal in internationally convertible currency. [Appendix, Art. IV(6)(a)(ii).] A compulsory translation license generally "does not extend to the export of copies' and is "valid only for publication" in the territory of the licensing State.] [Appendix Art. IV(4)(a).] [Copies published under a compulsory translation must bear a notice that the copies are available only for distribution in the licensing State. [Appendix, Art. IV(5).] (But the opportunity to engage in joint translation and reproduction abroad substantially equals the consequences of permitted export. See Chart I, p. 8.) COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS, THE STOCKHOLM PROTOCOL AND THE PARIS REVISION*—Continued Existing Berne Conventions (Rome, 1928 and Brussels, 1948) CHART II.-REPRODUCTION RIGHTS-Continued Stockholm protocol (1967) However, copies may be imported and sold in other countries allowing such importation and sale. [Protocol, Art. 1(b)(v) (effect of next-to-final sentence as negating conditions of prior sentence).] Copies made under a compulsory transla- Compulsory translation licenses terminate if an authorized translation into the language in question is published in the licensing State within ten years from first publication of the underlying Work. [Protocol, Art.l(b)(vii).] Copies made before termination may continue to be sold. [ld.] Berne Paris Revision (1971) However, in the case of translations into languages other than English, French or Spanish a public entity of the licensing State may export copies made under a compulsory translation license to its nationals in other countries, provided the copies are used "only for the purpose of teaching, scholar ship or research", the export and distribution of the copies is "without commercial purpose", and the receiving country has agreed to the importation. [Appendix, Art. IV(4)(c).] This permissible export is not applicable to audio-visual works. [See, Appendix, Art IV(4)(c) and Art. III(7)(b).] Copies made under a compulsory translation license may be reproduced in printed form outside of the territory of the licensing State if the licensing State has no reproduction facilities (or its facilities are "incapable" of reproducing the copies), all copies are returned in bulk to the licensing State, and the reproducer guarantees that the work of reproduction is lawful in its country. [General Report on the Paris Conference (Berne) par. 40.] Such reproduction may only take place in a Berne or Universal Copyright Convention country, and may not be done by a reproduction facility "specifically created" for compulsory licensing purposes. [ld.] The incorporation of compulsory-translated audio-visual texts into audio-visual Works may be done outside the territory of the licensing State under the same conditions. [Id. at par. 41 (a).] Compulsory licensees may employ translators and persons doing preliminary editorial work in other countries. [General Report par. 42.] A number of compulsory licensees may use the same unpublished translation [ld.]. Compulsory translation licenses terminate if an authorized translation into the language in question is published at a price reasonably related to that normally charged in the licensing State for comparable Works. [Appendix, Art. 11(6).] Copies made before termination may continue to be distributed "until their stock is exhausted." [ld.] NO CONCESSIONS The Rome and Brussels Acts do not expressly recognize a general right of reproduction. Whether such a right is implicit in these Acts has been a matter of academic discussion. NO COMPULSORY LICENSE The Stockholm Text expressly accords Same as Stockholm.* (See note 2.) The Stockholm text does allow members Same as Stockholm.** (See note 2.) A developing country may subject the Same as Stockholm [Appendix, Art. III(1)]. The system of compulsory licensing allows the "competent authority" (not defined) of a developing country to authorize the reproduction and publication of The system of compulsory licensing allows the "competent authority" (not defined) of a developing country to authorize the reproduction of Works, and the publication thereof COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTION. THE STOCKHOLM PROTOCOL AND THE PARIS REVISION*-Continued Same as Stockholdm. (See note 4.) Article 11 bis of the Rome Convention guarantees the exclusive right of broadcasting. However, all member states are permitted to "regulate" this, right, subject to the author's receiving "an equitable remuneration" which may be fixed by the "competent authority" absent agreement. Article 11 bis of the Brussels Convention extends this right to include communication of the original broadcast to the public by re-broadcast, wire, loudspeaker or other transmission. All member states are permitted to regulate these rights subject to the same condition of remuneration. NO CONCESSIONS CHART III.-OTHER RESERVATIONS Developed countries are bound by the substance of Art. 11 bis of the Brussels text. Developing countries may restrict the right of communicating the broadcast to the public to those communications "made for profit-making purposes." Developing countries may further regulate this right subject to the condition of remuneration. [Protocol, Art.1(d).] NO CONCESSIONS B-DURATION OF PROTECTION [Protocol, Art. 1(a).] Developing countries may limit the general duration of protection to the life of the author and not less than twenty-five years after his death; and the duration of protection of cinematographic, anonymous or pseudonymous works to not less than twenty-five years after it has been made available to the public. [Developed countries are bound to fifty year terms n each case. Text, Art. 7(1)-(3).] Developing countries may limit the term of protection of photographic Works and Works of applied art to not less than ten years from the making of such Works. (Developed countries are bound to protect such works for not less than twenty-five years from their making. Text, Art. 7(4).] |