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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,
Stockholm protocol (1967)
Berne Paris Revision (1971)
(Protocol, Art. I(e).!
Developing countries may restrict the Not set forth as separate provision; protection of all rights in any Work, "ex- however, see Charts I and II for effect of clusively for teaching, study and research in similar concessions on the interests of all fields of education."
authors and publishers of educational A developing country making such re- materials. striction must make "due provision" to assure a compensation which “conforms to standards of payment made to national authors." Payment and transmittal of such compensation is subject to national currency regulations.
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.
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 ! that each contracting staté "undertakes provide for the adequate and effective tion 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 | 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. (b)(ii)], with that of the reproduction license, which refers only to "reproduction and publication" (Appendix, Art. 1(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 ....
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 copy. right 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 UCO 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 pot 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,
DAVID M. ABSHIRE, Assistant Secretary for Congressional Relations. Enclosures. 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 1.-CRITERIA; DURATION; TIME OF ELECTION
Paris revision of the U.C.C.
Paris revision of Berne-appendix
Criteria Art. 1, preamble: "regarded as a Art. Vbis (1): same as the Stockholm Art. 1(1): same as the Stockholm developing country in conformity with protocol.
protocol; new member developing the established practice of the General
countries may invoke reservations. Assembly of the United Nations." Duration: 10-year initial period under art. 1, Art. Vbis (2) and (3): renewable 10. Art. 1(2) and (3): same as U.C.C.;
preamble, plus, under art. 3, right to ex- year periods until country becomes renewable 10-year periods until tend period indefinitely until adherence developed; cutoff point at end of country becomes developed; cutoff to new act that prohibits reservations; current 10-year period or 3 years point at end of current 10-year, but, under art. 4, cannot maintain reser- after country ceases to be a de- period or 3 years after country vations if no longer regarded as a de- veloping one, whichever expires ceases to be a developing one, veloping country-notification by direc- later.
whichever expires later, tor general and reservations cease 6 years thereafter. Time of election: Art. 1, preamble: upon Art. Vbis (1): at the time of ratifica. Art. 1(1): same as U.C.C. at the time of ratification or accession.
tion, acceptance, or accession, or ratification or accession, or at any thereafter,
PART II.-TERM OF PROTECTION; GENERAL EXEMPTION FOR TEACHING, STUDY AND RESEARCH IN EDUCATION
Term of protection: Art. 7 of the convention No special provision; under art. IV: No special provision; governed by as modified by art. 1(a) of the protocol: life plus 25 years, in general art. 7 of the convention: life plus life plus 25 years, in general.
50 years, in general. General education exemption: Art. 1(e): Omitted completely....
Omitted completely. Broad reservation permitting limitations on any economic right of authors for purposes of ''teaching, study and research" in all fields of education, subject to compensation that conforms to standards of payment for national authors.
PART III: TRANSLATION RESERVATION
Art. 1(b): 3-year period for all languages; Art. V of the U.C.C., as modified by Art. !I and IV: general y same as 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.-Continued
right ceases 10 years from 1st publica- art. Vter: essentially 34 years for U.C.C.
for "nonworld languages"-pars.
PART III: TRANSLATION RESERVATION_Continued
Paris revision of the U.C.C.
Paris revision of Berne-appendix
out commercial purpose (transla-
to the licensee. Note: Alternative to apply 10 year transla
Note: Irrevocable choice between tion reservation based on Paris Act of
Art. Il reservation and 10 year 1896, subject to material reciprocity.
translation reservation based on Paris Act of 1896, with no material reciprocity; may elect latter when developed, subject to material
reciprocity-art. V. No statement required limiting distribution Copies in all languages must bear Same as U.C.C., except no copyright
to licensing State; no copyright notice statement that they are only avail- notice required.
able for distribution in State where
notice--par. (4). "Just compensation" for licenses during "Just compensation that is consistent Same as U.C.C. 3. to 10-year period; no compensation with standards of royalties norafter 10 years if author failed to publish mally operating on licenses freely translation,
negotiated between persons in the
2 countries concerned"-par. (5).
intervene competent authority
vertible currency-par. (5). Recapture exclusive right by publication of Terminate Art. Vter license and fore- Recapture exclusive right at any time translation within 10 years of first close further Art. Vter licenses if if authorized translation in same publication.
authorized translation in same language and with substantially the
to seek new license governed
State without recapture.
License to translate a work published Same as U.C.C.
in printed or analogous forms of
par. (8). No comparable provision....
Under same conditions as above, Same as U.C.C.
license may also be granted to a
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.-Continued
PART IV: REPRODUCTION RESERVATION
Paris revision of the U.C.C.
Paris revision of Berne-appendix
Art. (c): compulsory licensing system Art. Vquater: exclusive period 5 Art. III and IV: same as U.C.C.
after 10 years unless right exercised by years generally; exceptions-3
physical sciences, including math-
lish for "educational and cultural pur- with "systematic instructional poses.
with standards of royalties nor-
two countries concerned -par. (2).
tions intervene, competent author
vertible currency-par. (2). Export permitted.......
Export prohibited as a rule-par. (1); Same as U.C.C.
however, printing abroad and sub-
must be lawful in that country. No comparable provision.....
Copies must bear notice stating Same as U.C.C.
available for distribution only in
(2). License to reproduce "literary or artistic License to reproduce literary scien- Same as U.C.C. but with general work."
tific or artistic works that have reference to "works."
nection with systematic instruc-
par. (2). No comparable provision.....
Notice of copyright must be printed No comparable provision.
by licensee if the original work
bore U.C.C. notice-par. (2). No comparable provision.....
License to reproduce audiovisual Same as U.C.C.
fixations and translation of accom-
reproduce translation not pub-