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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 V.-BROADCASTING RESERVATION
Paris revision of the U.C.C.
Paris revision of Berne-appendix
Art. 1(d): Substitute for art. 11bis(l) and No special provisions for developing No special provisions for developing
(2) provisions that essentially correspond countries; art. IVbis expressly rec- countries; art. 11bis of the convento the text of the 1928 Rome Convention ognizes the right to broadcast tion. on the broadcasting right: National legis. either in the original form or in any lation may regulate conditions, i.e. estab- form recognizably derived from lish compulsory licensing system the original; national legislation throughout term of copyright; right of may make exceptions that do not authorizing broadcast and communica- conflict with the spirit of the fun. tion to public of broadcast if communica- damental right; must accord "reation for profitmaking purposes: licenses sonable degree of effective prosubject to payment of equitable remun- tection." eration."
LINDEN AND DEUTSCH,
New York, N.Y.
PARIS REVISION OF THE UNIVERSAL COPYRIGHT CONVENTION—A RESPONSE TO
COMMENTS OF THE DEPARTMENT OF STATE This statement is in response to comments of the Department of State received in reply to our prior analysis of the Paris revision of the Universal Copyright Convention. This response is limited to points directly made by the Department in its letter of June 21, 1972 to Senator Fulbright. Additional points and amplifications are raised in our prior analysis.
The Department of State correctly recognizes that our comments are directed at two questions. The Department has declined to give any opinion on the second of these, namely, whether Congress should provide a means for compensating American authors and publishers who suffer financial injury by reason of the concessions granted to developing countries under the revised Universal Copyright Convention. Indeed, the Department's letter does not appear to contradict the likelihood of such injury, except to question the extent to which the developing countries will resort to the proposed compulsory licenses and to point to the fact that such countries might unilaterally impose more burdensome conditions in their own copyright laws.
We shall return to both of these points below; at this point we would simply note the Department's conclusion that "ratification of the revised UCC is in the national interest.” We do not share this view. If, however, after a full examination of the facts the Senate should decide to ratify the revised Convention, the Trade Expansion Act of 1962 is ample precedent for Congress' obligation to compensate those American citizens who will be injured in the interests of our foreign policy goals.
The first question raised is whether the Senate should ratify the revised Convention. Although the questions are distinct, the answers cannot be separated. We do not believe that Congress should decide whether to adopt a course of action likely to cause economic injury to a class of American citizens without considering what devices are available to mitigate such injury.
The Department notes that "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." We will concede that, at the present time, our position against ratification appears to be a minority one. It is shared, however, by several other publishers, We daresay that many of those groups which have endorsed ratification have done so with insufficient consideration of the potential impact of the revisions and might be disposed to modify their position upon a full examination of the facts. We refer, in this connection, to a recent article by counsel to the Authors' League, a copy of which is enclosed, entitled "Downgrading the Protection of International Copyright" in which Mr. Karp in essence holds that the Paris Revision of the UCC is the same sellout of authors and publishers as the notorious Stockholm Protocol. We would also note that it is one particular group, authors and publishers of educational materials, who will suffer most of the adverse effects of the revised Convention and that the viewpoints of this particular group have not been expressed publicly to date.
The chart prepared by the Copyright Office and included with the State Department's reply to Senator Fulbright is not inconsistent with the study prepared by our office. Both lead to the conclusion that the "improvements” of the Paris revi. sion over the terms of the Stockholm Protocol are principally of a procedural nature, subject to application, interpretation, and implementation by each developing country. So far as authors and publishers of textbooks and other educational material are concerned, any improvements are minimal or illusory. Examples illustrative of this conclusion are given in our initial analysis of the Paris revision.
The Department's letter also points to the possible steps which may be taken by developing countries if not granted the concessions embodied in the revised UCC. We are not persuaded that the revision will not lead to substantially similar results even within the framework of an international convention. Furthermore, a number of developing countries already are members of either the Berne or Universal Copyright Conventions and their willingness to take steps requir. ing withdrawal from their existing Convention obligations is likely to be tempered by political considerations. Even if that were not the case, we cannot accept the notion that we should allow ourselves to be blackmailed into concessions injurous to the interests of American citizens. Foreign countries may wish to expropriate the tangible properties of American citizens situated abroad, but we have never consented to any prior, formal multinational legitimazation of such practices because of threats that it will be done anyway.
The Department states that, based upon experience with Article V of the existing UCC, it may be doubted that the compulsory licensing provisions will be utilized. To begin with, the new translation license of the Paris revision may become available sooner than is the case with the existing UCC provision; also, the concessions allowing foreign translation and manufacture facilitate use of the licenses. More significantly, perhaps, the compulsory license provisions obviously do not have to be resorted to in order to have their adverse effect. Their mere availability is sufficient to deprive international bargaining of any semblance of free negotiation. Where the requesting party may use a refusal by an owner of rights as a vehicle to more favorable terms, it becomes difficult for us to understand how “terms (can be] worked out between the parties involved without the need for recourse to the treaty.” It is equally difficult to understand the zeal with which the developing countries sought the compulsory license provisions, and the piratical consequences the Department feels will enure if such concessions are not granted, if the provisions are not to be used.
The Department states that the revised UCC does not permit unpaid use, but requires 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.'” It is obvious that the "due-ness" of the provisions, the "just-ness” of the compensation and its "consistency" with prior standards are subject to varying interpretations and considerations among each of the developing countries. It is not unwarranted to assume that what developing countries may deem “just compensation" to American authors and publishers will be less than a pittance. Similarly, in the area of audio-visual works and similar materials of the new educational technology, any pre-existing standards are illusory if not nonexistent; yet such materials require a great deal of investment of author and publisher time, expense and effort. We reiterate our opinion that, in practice, the compensation that actually would be paid under compulsory licensing can only be described as negligibile.
The Department also states that ratification of the revised ICC "will provide concrete evidence of the concern of the United States for the legitimate needs of developing countries in the field of education.” These needs are valid. We question, however, whether it is the function of a class of individual American citizens to fulfill them upon terms imposed by an international, governmental agreement. Would not governmental loans abroad or governmental purchases under Constitutional guarantees and resale abroad or some similar means be more appropriate? The "educational needs” of developing countries also include schoolrooms, construction equipment, and instructional apparatus ; to our knowledge, the producers of such physical properties have not been asked to make the sacrifices now to be required of owners of intangible property-American authors and publishers.
Should Congress decide, for some reason we cannot now acknowledge, that the fulfilling of “educational needs” is an individual function, there are the additional questions of whether the revised UCC is properly constructed to meet that end with adequate safeguards against appropriation of American property under circumstances not legitimately related to such needs; and of why the individuals should not be compensated for injuries occasioned by their contribution.
(From Publishers Weekly, September 27, 1971]
DOWNGRADING THE PROTECTION OF INTERNATIONAL COPYRIGHT
(By Irwin Karp) "Developed" and "developing” nations alike will want to study the diminished degree of international copyright protection which is foreseen in reports of major copyright revision conferences held in July in Paris.
Revised texts of the 1952 Universal Copyright Convention and Berne Convention were adopted at conferences held in Paris from July 5 to July 24. The purpose of the revisions, embodied in identical provisions of both new conventions, is to allow "developing countries” to diminish copyright protection by granting compulsory licenses to translate and reproduce books and audio-visual materials without the copyright owners' consent.
The 1971 UCC becomes effective when ratified by 12 countries. It must be ratified by the United States to apply to American works. Although the United States could not accede to the new Paris (Berne) Act until the 1909 Copyright Act is revised, the Paris Act will not become effective until the United States, France, Britain, and Spain agree to be bound by the 1971 UCC. A United States delegation participated in the UCC conference and sat as observer at the Berne conference
STOCKHOLM PROTOCOL REVISITED The Paris conferences climaxed four years of maneuvering that began with the Stockholm revision of the Berne Convention. At Stockholm, developing countries argued that they must have “freer access” to foreign copyrighted works than the Berne Convention permitted, to improve their education and culture. "Developing country," it should be noted, is an elastic term of formidable reach. It includes countries truly in early stages of economic and cultural development, such as the new African states. It also stretches to embrace Brazil, Yugoslavia, Israel, India, and many other nations well enough developed to maintain large armed forces, extensive government bureaucracies, publishing industries, and other amenities one ordinarily associates with "developed” countries. In fact, under the definitions in both new conventions, a substantial majority of United Nations members would qualify as developing countries, entitled to exercise compulsory licensing privileges.
"Freer access" also is an elusive term. At times it seemed to mean an improvement in communication between developing countriess and authors or publishers in developed countries, so that voluntary licenses could be negotiated more easily. But ultimately it connoted something more drastic, i.e., the privilege of translating or reproducing an author's work without his permission, or at a royalty lower than he asked for a voluntary license he is willing to grant.
A NEW KIND OF "FREE ACCESS"
A nation outside the copyright conventions can give itself this kind of “free access." It can, like the Soviet Union, allow its publishing houses, state or privately owned, to translate and publish foreign works without their authors' consent. It need not pay any royalties; or it can fix whatever rate it chooses. And like the USSR, it can make the royalties non-exportable when it chooses to allow them. However, a country bound by a copyright convention cannot override authors' rights so easily. It must protect the works of other member countries according to the standards of its convention. If it wants to appropriate works in violation of the standards, it must leave the convention. Or it can try to have the convention amended, downgrading the standards of protection to the point where it is free to adopt compulsory licensing, preferably while requiring other countries to continue giving full protection to its authors.
The developing countries of the Berne Union successfully employed this tactic at Stockholm in 1967. The Stockholm Act made several changes in the Berne Convention, including the appending of a Protocol to the main text. The Protocol contained a set of exemptions permitting the developing countries to grant compulsory translation and reproduction licenses, to "limit" the economic rights of authors for purposes of teaching and study, and to make other encroachments on the standards of protection required of member countries in the main text. When the panic subsided, developed countries realized they almost had surrendered too much of their authors' rights. They did not ratify the Protocol, and it never became applicable to their authors and publishers. The developing countries did not stalk out of Berne, or the UCC.
But talk of an exodus persisted ; and developing countries continued to argue for “freer access" to copyrighted works of developed countries. In 1969 a joint CCC-Berne study group recommended the simultaneous revision of both conventions. And in 1970 revised texts were drafted for the Revision Conferences by UCC and Berne committees, each consisting of several developing and developed countries. The final draft texts were the result of two rounds of negotiations and preparation in which the developing and developed countries made concessions and gave up rights to reach a "delicate balance”-a compromise frequently referred to at the Paris conferences as "the package deal."
The developed countries expected that the draft texts would be adopted without substantive changes by the conferences, since they were the result of substantial compromises and thorough consideration. Their opening speeches emphasized the need for maintaining the “delicate balance" and not reopening the "package deal.” But developing countries reopened the “package deal" and made changes, through amendments of the text and adoption of "interpretations” in the Report.
Since the United States is a member of the UCC and not of Berne, and since the same basic changes were made in both conventions, the discussion is keyed to the 1971 UCC.
THE BERNE SAFEGUARD CLAUSE Article XVII of the 1952 UCC and the Appendix Declaration prevented any country belonging to both conventions from leaving Berne and relying on UCC for protection, in other Berne-UCC countries. The 1971 UCC eliminates this condition for developing countries, allowing them to leave Berne and retain UCC protection in any other country belonging to both conventions.
REPRODUCTION, PERFORMANCE RIGHTS Article I of the 1952 UCC requires member states to "provide for the adequate and effective protection of the rights of authors and other copyright proprietors.” It remains unchanged in the 1971 text, and is supplemented by a new article, IV bis, which states that the rights mentioned in Article I "include the basic rights insuring the author's economic interests, including the exclusive right to authorize reproduction by any means, public performance and broadcasting."
While some observers see IV as upgrading the level of protection in UCC, it is doubtful that it adds much to the present obligation of Article I to provide “adequate and effective protection of the rights of authors.” Moreover, Article IV bis allows member states to carve exceptions into these "exclusive" rights, declaring that any state may "make exceptions that do not conflict with the spirit and provisions of this Convention, to the rights” of reproduction, public performance and broadcasting, so long as a “reasonable degree of effective protection” is provided. This could cover a wide range of exceptions which copyright experts in other countries might devise, particularly since their courts will be the only effective forums for deciding whether the "exceptions” they legislate comply with the provisions of IV bis of the UCC.
DEFINITION OF DEVELOPING COUNTRY
Article V bis defines a developing country as one so regarded “in conformity with the established practice of the U.N. General Assembly.” There is no explicit practice, or list of developing countries. The U.N.'s Committee on Assessments has considered "developing countries" as those with a per capita income of $300 or less. But the developing countries at Paris strongly resisted the suggestion that this or any other concrete criteria be approved by the two Conferences. From a practical viewpoint, every country in both conventions may be free to decide for itself whether it is a developing country. Practically every South American, African, Middle Eastern, and Asian nation except Japan could qualify, as well as some European countries.
A developing country which notifies the Director General of UNESCO that it wishes to exercise the compulsory licensing provisions of the UCC may do so for ten years after the Convention comes into force and may renew the privilege for further ten-year periods.
THE PRESENT TRANSLATION LICENSE
Article V of the 1952 UCC guarantees the author's exclusive right of translation of his work for seven years following initial publication. Thereafter, if an authorized translation has not appeared in any country's national language or if the authorized translation is out of print, the country may grant its nationals non-exclusive licenses to translate and publish the work in its language. The applicant must have requested and been denied authorization by the owner of the translation right, or given notice to the publisher and designated diplomatic officials or organizations, if the owner cannot be found. The Article applies to all members of the Convention.
Article V requires assurance of just compensation, payment, and transmittal, a correct translation, and the title and owner's name printed on every copy. Very few compulsory licenses have been granted under Article V, perhaps because of the seven-year requirement.
THE NEW TRANSLATION LICENSE
The 1971 UCC retains Article V, with a few insubstantial changes. But it also adds a new Article V ter which permits developing countries—for purposes of “teaching, scholarships or research”—to grant compulsory licenses three years after publication, instead of seven, for translation into languages that are in general use in developed countries; and to grant licenses one year after initial publication for translation into languages not generally used in developed countries. Thus, a South American developing country could grant a license to translate an American novel into Spanish three years after it was first published in the United States, while India could grant a license to translate it into Kashmiri or Bengali one year after publication—if an authorized translation had not been published in that language or, if published, had gone out of print. These compulsory licenses are subject to the conditions of Article V and additional conditions of V ter, discussed below.
THE REPRODUCTION LICENSE
The 1971 UCC would also permit developing countries to grant non-exclusive compulsory licenses to reproduce works for “use in connection with systematic instructional activities.” The license would permit reprinting of books in their original language and the reprinting of translation authorized by the owner, provided the language was in general use in the country granting the license.
The license can be granted if, within a specified period of time following initial publication of an edition, the owner has not distributed copies tin the country “to the general public or in connection with systematic instructional activities at a price reasonably related to that normally charged in the State for comparable works. ..." The grace period for fiction, poetry, drama, music, and art books is seven years from publication; for scientific and technological books, three years; and for others, five years. Reproduction licenses may also be granted if, during a six-month period, no authorized copies are on sale to the public or for systematic instructional materials at a "reasonably related" price.
WORKS SUBJECT TO LICENSES
Reproduction licenses under V quater apply only to literary, scientific, or artistic works published in printed or analogous form, and to those audio-visual works, including incorporated text, which were prepared and published for the sole purpose of being used in connection with systematic instructional activities.
Translation licenses under V ter apply to "writings” and permit “publication" of the translation. "Publication" means reproduction and distribution of copies which can be read or otherwise visually perceived ; and, according to Article I of the UCC, a "writing" is a separate category of work, distinct from