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 11.-REPRODUCTION RIGHTS-Continued Stockholm protocol (1967) The applicant must send copies of his application to the publisher of the Work and a representative of the country of the owner [Protocol, Art. I(c)(ii)]; 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(c)(ii).] Developing countries establishing a system of compulsory reproduction licenses must make "due provision" to assure: (1) an "accurate reproduction" [Protocol, Art. I (c)(iii)]; and (2) a "just compensation" [Id.] Payment and transmittal of compensation is "subject to national currency regulations." [Protocol, Art.I(c)(iii).] A compulsory reproduction license is generally "valid only for publication in the territory of" the licensing State. (Protocol, Art. I(c)(iv).] However, copies may be imported and sold in other countries allowing such importation and sale. [Protocol, Art. I(c)(iv) (effect of next-to-final sentence as negating conditions of prior sentence).] Copies made under a compulsory reproduction license may be manufactured outside of the territory of the licensing State. See Report, Main Committee II (Stockholm) par. 14.] Berne Paris Revision (1971) The applicant must send copies of his application by registered airmail to the publisher of the Work and an information center deisgnated 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 this grace period, the owner distributes his work at "reasonably related" prices in the licensing State, the license may not be granted. [Appendix, Art. 111(4)(a)(ii), 111(4)(b), 11(4)(c).] Developing countries establishing a system of compulsory translation licenses must make "due provision'' to assure: (1) an "accurate reproduction" [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 reproduction 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 II pg. 5). Copies made under a compulsory reproduction license may be reproduced in printed form outside 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.] Although the "incorporation of compulsory-translated audio-visual texts into audiovisual Works" may be done outside the territory of the licensing State under the the same conditions, these provisions may not apply to all aspects of the reproduction in audio-visual form of the audio-visual work itself. (See Id. at par. 41(a), par. 40.] Compulsory licensees may employ persons doing preliminary editorial work in other countries. [General Report par. 42.]. COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS, 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 comparable provision. 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).] No comparable provision. COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS, THE STOCKHOLM PROTOCOL AND THE PARIS REVISION*-Continued C-GENERAL RESERVATION Existing Berne Conventions (Rome, 1928 and Brussels, 1948) NO CONCESSIONS Stockholm protocol (1967) [Protocol, Art. 1(e).] A developing country making such re- Copies published under such restrictions may be imported and sold for "teaching, study and research purposes" in other developing countries which have invoked these restrictions and do not prohibit such importation and sale. Importation into developed countries is prohibited without the agreement of the author or his successor. Berne Paris Revision (1971) Not set forth as separate provision; however, see Charts I and II for effect of similar concessions on the interests of authors and publishers of educational materials. Note (1): Neither the existing (1952) Universal Copyright Convention nor the Paris Revision of that Convention permits free translation ten years after publication. Under Article V of both the existing Convention and the Paris Revision, all member countries may establish a system of compulsory licenses for the translation of works if, after the expiration of seven years from first publication, a translation has not been published in the "national language" of (1952 Convention), or a language "in general use in" (Paris revision) in, that State. The compensation due for compulsory licenses under Article Vis to be "just and (in conformity with] international standards." Article V ter of the Paris Revision of the Universal Convention concedes to developing countries the right to exercise compulsory translation licensing after only one or three years from first publication, under conditions substantially identical to those of the Paris Revision of the Berne Convention. Note (2): The existing U.C.C. does not specifically guarantee the exclusive right of reproduction. This matter is left to the generality of Article I that each contracting state "undertakes to provide for the adequate and effective protection of the rights of authors and... copyright proprietors "Article IV bis of the Paris Revision of the U.C.C. takes this matter somewhat forward as it provides that "the rights referred to in Article I shall include ... the exclusive right to authorize reproduction by any means." However, the significance of this step is weakened by the succeeding provisions of Art. IV bis: "However, any Contracting State may, by its domestic legislation, make exceptions that do not conflict with the spirit and provisions of this Convention Any State whose legislation so provides, shall nevertheless accord a reasonable degree of effective protection Note (3): Although the compulsory reproduction license of the Universal Copyright Convention specifically allows reproduction in audio-visual form" in the case of audio-visual works, printed works produced under compulsory license would have to be reproduced "in tangible form. . . from which [they] can be read or otherwise visually perceived." (Definition of "Publication", Art. VI.) A corresponding limitation does not appear in the Berne Conventions and the precise meaning of "publication", particularly as regards reproduction in sound recorded form, is subject to variation among Union countries. (Compare the scope of the compulsory translation license under the Paris Revision of Berne, which refers to "publication in printed or analagous forms of reproduction" [Appendix, Art. 1(b)(ii)], with that of the reproduction license, which refers only to "reproduction and publication" [Appendix, Art. I(c)]. "Reproduction" is defined in Art. 9 of the Paris Text of Berne as including "any sound or visual recording.") Note (4): The existing U.C.C. does not specifically guarantee the exclusive right of broadcasting. This matter is left to the generality of Article that each contracting state "undertakes to provide for the adequate and effective protection of the rights of authors and . . . copyright proprietors Article IV bis of the Paris Revision of the U.C.C. takes this matter somewhat forward as it provides that "the rights referred to in Article I shall include the exclusive right to authorize... broadcasting." However, the significance of this step is weakened by the succeeding provisions of Art. IV bis: "However, any Contracting State may, by its domestic legislation, make exceptions that do not conflict with the spirit and provisions of this Convention. Any State whose legislation so provides, shall nevertheless accord a reasonable degree of effective protection. " EXHIBIT B DEPARTMENT OF STATE, Washington, D.C., June 21, 1972. Hon. J. W. FULBRIGHT, Chairman, Committee on Foreign Relations, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: I am replying to your letter of June 7 in which you inquire on behalf of Mr. Raymond C. Hagel, Chairman of the Board of Crowell. Collier and MacMillan, Inc., about certain provisions contained in the Universal Copyright Convention (UCC) as revised at Paris in July 1971. Representative Fraser and Senator Case have also written us about Mr. Hagel's interest and I have sent them similar replies. The Executive Branch of the Government, along with the Copyright Office, believes that ratification of the revised UCC is in the national interest. As we see it, there are two basic question involved in Mr. Hagel's letter and the legal presentation attached to it. The first is whether or not the U.S. should ratify the revised convention, and the other is whether authors and publishers should be compensated for any losses which might possibly occur under the provisions in the revised convention which establish procedures for the translation and reproduction of copyrighted works in developing countries. I shall limit my comments to the first question. The second question raises the issue of domestic compensatory legislation and falls more within the Congress' area of competence than ours. I have already stated that the Department supports ratification of the UCC. It is our considered opinion that the revised convention is essential to the maintenance of the international copyright system as we know it today. Indeed, we believe that in certain respects, it may strengthen international copyright protection. At the same time, it will provide concrete evidence of the concern of the United States for the legitimate needs of developing countries in the field of education. I believe it would be helpful to provide you with some background on this matter. The revision of the UCC came about largely as a result of a crisis in international copyright protection which occurred in 1967. It was at this time that the Stockholm Protocol, to which Mr. Hagel refers in his letter, was appended to the Berne Copyright Convention as an integral part of that Convention. The Berne Convention is the other major international copyright convention. While the U.S. does not adhere to Berne, many countries belonging to the UCC also adhere to Berne and the two conventions are closely related. The developed countries party to the Berne Convention found themselves unable to ratify the Stockholm Protocol. The developing countries, insisting that formal recognition of their special needs was essential, threatened to withdraw from Berne. Because of a special clause in the UCC, countries renouncing Berne could not rely on the UCC for protection in other UCC-Berne countries. The result of renunciation of Berne would have been the exodus of the developing countries from both major copyright conventions and a virtual collapse of the international copyright system as we know it today. In the face of this situation, it was decided to revise both the Berne and Universal Copyright Conventions in such a way that both developed and developing countries could accept their terms. This was the compromise worked out in 1971 at the Diplomatic Conference. It was a compromise arrived at through careful and lengthy negotiations in which over 60 countries participated or had observer delegations, including virtually all the major developing and developed countries. It should be noted that the fundamental U.S. negotiating position was worked out prior to the Conference through numerous consultations with all the interested copyright groups in the United States. As a matter of fact, most of these same groups were represented on the U.S. Delegation to the Conference. The compromise does not "permit unauthorized and unpaid use by 'developing' nations for 'educational' purposes," as Mr. Hagel states. Rather, the revised UCC provides for the issuance of compulsory licenses for the use of copyrighted materials for educational purposes when such materials are not made available by the copyright owners during varying time periods, and states that "due provision shall be made at the national level to ensure” that compulsory licenses provide for "just compensation that is consistent with standards of royalties normally operating in the two countries concerned." The provision for compulsory licensing is by no means new, a provision for compulsory licensing for translation rights has been contained in the Universal Copyright Convention since its inception in 1955. As far as we are aware, not one country has exercised the right to a compulsory license under that provision. Rather, terms have been worked out between the parties involved without the need for recourse to the treaty. It is quite possible that this will occur under the revised treaty, should it go into force. It is important to note that the developing countries have the option of not adhering to either the Universal Copyright Convention or the Berne Convention, should these conventions not prove satisfactory to them. In such a case, they would also have the option of adopting national legislation which would provide for the use of foreign works without any license or payment whatever or with compulsory licensing provisions that might prove far more onerous than those contained in the two revised conventions. It is the State Department's belief that the revised UCC constitutes a fair and just compromise and that failure on the part of the U.S. to ratify the convention could presage a return to the previous state of chaos in the international copyright field. Such a result would, of course, be detrimental to all interests concerned and especially to U.S. authors and publishers whose works are so widely used throughout the world. In recognition of this fact, the Association of American Publishers, along with many other major copyright groups, including the American Bar Association, have firmly endorsed U.S. ratification of the UCC. I hope this information will aid you in responding to Mr. Hagel. I have also enclosed a chart prepared by the Copyright Office which compares the provisions for developing countries contained in the revised conventions to those contained in the Stockholm Protocol. I believe this study will be of interest to you and should be helpful if read in conjunction with the study prepared by Mr. Hagel's attorneys. Please do not hesitate to contact me if I can be of any further assistance. Sincerely yours, Enclosures. DAVID M. ABSHIRE, Assistant Secretary for Congressional Relations. COLUMNAR COMPARISON OF SPECIAL PROVISIONS FOR DEVELOPING COUNTRIES IN THE STOCKHOLM PROTOCOL AND THE PARIS REVISIONS (1971) OF THE U.C.C. AND BERNE CONVENTIONS PART I.-CRITERIA; DURATION; TIME OF ELECTION Stockholm protocol Paris revision of the U.C.C. Paris revision of Berne-appendix Criteria Art. 1, preamble: "regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations." Duration: 10-year initial period under art. 1, preamble, plus, under art. 3, right to extend period indefinitely until adherence to new act that prohibits reservations; but, under art. 4, cannot maintain reservations if no longer regarded as a developing country-notification by director general and reservations cease 6 years thereafter. Time of election: Art. 1, preamble: upon ratification or accession. PART II.-TERM OF PROTECTION; GENERAL EXEMPTION FOR TEACHING, STUDY AND RESEARCH IN EDUCATION |