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COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS, THE STOCKHOLM PROTOCOL AND THE PARIS REVISION*

ANNEX A

CHART 1.--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)

Stockholm protocol (1967)

Berne Paris Revision (1971)

NO CONCESSIONS Despite Convention recog- A developing country may reserve the Same as Stockholm Protocol with respect nition of exclusive translation right to allow translation of Works without to translation into languages "in general rights, any country may re- authorization or compensation if, after ten use" in the developing country. JAppendix, serve the right to allow trans. years from first publication of the original Arts. V(1/a), 16Xb); Text, Art. 30(2). lation of Works into its na- Work, an authorized translation has not (See note 1.) tional languages without been published in a Union country in the authorization or compensa- language for which protection is claimed. tion it, after ten years from Developed countries may not retaliate first publication of the origi, against Works emanating from a developing nal Work, an authorized country making this reservation. (Protocol, translation into such language Art. 1(b)(i). (A developed country making has not been published in a such a reservation under Stockholm is subUnion country. Other Con- ject to retaliation (Text, Art. 30(2)(b)].) vention countries may not retaliate against Works emanating from a country making this reservation. (Art. 25(3).]

In addition to allowing free translation As an alternative to allowing free translaNO COMPULSORY ten years after first publication, a develop- tion ten years after first publication, a LICENSE

ing country may subject the right of transla- developing country may subject the right of tion to compulsory licensing. (Protocol, Art. translation to compulsory licensing Appen1(b)(i)(ii).)

dix, Art. 11, V(1)(c), V(2), 1(1)].** (See

note 1.) The system of compulsory licensing al- The system of compulsory licensing allows lows the "competent authority" (not de- the "competent authority" (not defined) to fined) of a developing country to authorize authorize the translation of Works, and the the translation of Works, and the publica publication of the translation in printed or tion of the translation, without the authority analagous forms of reproduction, without the of the owner of translation rights, on certain authority of the owner of translation rights, terms and conditions. (Protocol, Art. 1(b) on certain terms and conditions. Appendix, (ii).)

Art. 11(1), 11(2)(A)). In the case of certain audio-visual Works, the license extends to publication of the translation in audio

visual form. (Appendix Art. Ill(7)(O).) All books, audio-visual Works, and other All Works published in printed or Works are subject to compulsory trans- analagous forms of reproudction" are lation license. [Protocol Art.1(b); Text, subject to compulsory translation licensing. Art. 11.) No special provision is made con- (Appendix, Art. 11(1)). cerning application of the compulsory The textual portions of audio-visual license to the textual portions of audio- Works which were prepared and published visual Works,

for the sole purpose of being used in connection with systematic instructional activities" are subject to a compulsory translation license. (Appendix, Art. 11(9Xc), 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.) A compulsory translation license may be Printed Works: A compulsory license for granted without restriction as to purpose. 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).

COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS,

THE STOCKHOLM PROTOCOL AND THE PARIS REVISION --Continued

CHART 1.- TRANSLATION RIGHTS—Continued

Existing Berne Conventions (Rome, 1928 and Brussels,

1948)

Stockholm protocol (1967)

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. llbis.)

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. II(9Xc).)

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 activ

ities" (Appendix, Art. 111(7)(b), III(1). The compulsory translation license may The compulsory translation license may only be granted for translation into a "na- only be granted for translation into a lantional, official, or regional language" of guage "in general use" in the licensing the licensing State. (Protocol, Art. 1(b). State. (Appendix, Art. 11(2)(a), 111(7)(b).) (iii).)

Printed Works: The compulsory translation license The compulsory translation license becomes available three years after first becomes available after a stated number of publication of the original work if a trans- years from first publication of the original lation thereof has not then been published Work if a translation thereof has not then in the licensing State into a national, official been publicized anywhere in the language or regional language of that State, or if all concerned, or if all editions of a translation previous editions of a translation in such into such language are out of print. language in that State are then out of print. In the case of translations into a language (The license will be available for transla- not in general use in any developed Berne tion into any of the national, official or country the relevant period is one year. regional languages into which the original [Appendix, Art. !l (3)(a), 11(2)(a).I. Work had not been published or in which a in the case of translations into a language translation is out of print.) (Protocol, Art. I in general use in any developed Berne (b)(ii).]

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. 1l(9)CXd).

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. 111(7Xb), Il|(2XaXb).

The relevant period is: three years for Works in the area science, mathematics and technology; seven years for Works of fiction, poetry, drama and music; five years in other cases. (Appendix, Art. 111(1)(b), 111(3).)

COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS,

THE STOCKHOLM PROTOCOL AND THE PARIS REVISION—Continued

CHART 11.-REPRODUCTION RIGHTS

Existing Berne Conventions (Rome, 1928 and Brussels,

1948)

Stockholm protocol (1967)

Berne Paris Revision (1971)

An applicant for a compulsory transla- An applicant for a compulsory translation license must, "in accordance with the tion license must, "in accordance with the procedures of the licensing State, establish procedure" of the licensing State, establish either:

either: (1) "That he has requested, and been (1) "That he has requested, and been denied, authorization" by the owner of the denied, authorization" by the owner of the translation right (Protocol, Art. 1(b)(ii)]; 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(i); 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. 11(A)(a)(i), 11(4Xb),

111(7)(b), 11(4Xa) (i), 111(4)C). Or

Or (2) "That, after due diligence on his part, (2) “That, after due diligence on his part, he was unable to find the owner of the he was unable to find the owner of the right." (Protocol, Art. (bXii)]. In this case: right." (Appendix, Art. IV(1)]. In this case:

The applicant must send copies of his The applicant must send copies of his application to the publisher of the Work application by registered airmail to the and a representative of the country of the publisher of the Work and an information country of the owner (Protocol, Art. 1(b)- center designated by the publisher's country (iii)l; and

(Appendix, Art, IV(2)]; and The license may not be granted until The license may not be granted until after the expiration of two months from the after the expiration of varying grace periods dispatch of copies of the application from the dispatch of copies of the applica(Protocol, Art. 1(b)(iii)).

tion. 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 licens. ing State), the license may not be granted. Appendix, Art. 11(4XaX2), !|(4Xb), 111(7)

(6), 111(4)(aXii), ll (4)(b), !!!(AXC).) Developing countries establishing a sys- Developing countries establishing a system of compulsory translation licenses must tem of compulsory translation licenses must make "due provision" to assure:

make 'due provision" to assure: (1) a "correct translation" (Protocol, (1) a "correct translation" (Appendix, Art. 1 (bXiv)]; and

Art. IV (6)(b)]; and (2) à just compensation" (ld.]

(2) a just compensation that is consistPayment and transmittal of compensation ent with standards of royalties normally is "subject to national currency regula- operating on licenses freely negotiated bettions." (Protocol, Art. 1(b)(iv).)

ween 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(6XaXii).
The obligation to pay compensation under
a compulsory translation license termi-
nates 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. 1bXviii).

A compulsory translation license is A compulsory translation license generally generally "valid only for publication in the "does not extend to the export of copies territory of the licensing State. (Protocol, and is "valid only for publication" in the Art. I(bXv..]

territory of the licensing State.) [Appendix Art. IV(4Xa). [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

CHART II.-REPRODUCTION RIGHTS-Continued

Existing Berne Conventions (Rome, 1928 and Brussels,

1948)

Stockholm protocol (1967)

Berne Paris Revision (1971)

However, copies may be imported and However, in the case of translations into sold in other countries allowing such im- languages other than English, French or portation and sale. (Protocol, Art. 1(b)(v) Spanish a public entity of the licensing State (effect of next-to-final sentence as negating may export copies made under a compulsory conditions of prior sentence). I

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(4Xc).)

This permissible export is not applicable to audio-visual works. (See, Appendix, Art

IV(4XC) and Art. 111(77b).)
Copies made under a compulsory transla- Copies made under a compulsory transla-

tion license may be reproduced outside tion license may be reproduced in printed
of the territory of the licensing

State. (See form outside of the territory of the licensing Report, Main Committee 11 (Stockholm) State if the licensing State has no reproducpar. 14.)

tion 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. [!d.]

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. Ild. 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 (Id.). Compulsory translation licenses termi- Compulsory translation licenses terminate nate if an authorized translation into the if an authorized translation into the language language in question is published in the in question is published at a price reasonably licensing State within ten years from first related to that normally charged in the publication of the underlying Work. (Pro- licensing State for comparable Works. tocol, Art.1(b)(vii). I

(Appendix, Art. 11(6).) Copies made before termination may Copies made before termination may concontinue to be sold. (Id.)

tinue to be distributed until their stock is

exhausted." (1 d.)
NO CONCESSIONS
The Rome and Brussels The Stockholm Text expressly accords Same as Stockholm.* (See note 2.)
Acts do not expressly recog. authors the exclusive right of reproducing
nize a general right of repro- (and recording) their works. (Text, Art. 9.1
duction. Whether such a right The Stockholm text does allow members Same as Stockholm.** (See note 2.)
is implicit in these Acts has to permit reproduction in "certain special
been a matter of academic cases," provided that such reproduction
discussion.

"does not conflict with normal exploitation
of the Work and does not prejudice the
legitimate interests of the author." (Id.) It
is believed that these conditions avoid the
reproduction right being subject to general
systems of compulsory licensing, except as

permitted to developing countries. NO COMPULSORY LICENSE A developing country may subject the Same as Stockholm (Appendix, Art. III(1)].

right of reproduction to compulsory licens-
ing. (Protocol, Art. 1(c).)

The system of compulsory licensing The system of compulsory licensing allows
allows the "competent authority" (not the "competent authority" (not defined) of
defined) of a developing country to author. a developing country to authorize the repro-
ize the reproduction and publication of duction of Works, and the publication thereof

COMPARISON OF CONCESSIONS TO DEVELOPING COUNTRIES UNDER THE EXISTING BERNE CONVENTIONS,

THE STOCKHOLM PROTOCOL AND THE PARIS REVISION -Continued

CHART 11.-REPRODUCTION RIGHTS—Continued

Existing Berne Conventions (Rome, 1928 and Brussels,

1948)

Stockholm protocol (1967)

Berne Paris Revision (1971)

Works without the authority of the owner at prices reasonably related to those norof reproduction rights, on certain terms and mally charged in the licensing State for conditions. (Protocol, Art. 1(c).]

comparable Works, without the authority of the owner of reproduction rights, on certain terms and conditions. (Appendix, Art. III

(1X2)(a).! All Works are subject to compulsory All Works published in "printed or analo. reproduction licensing. (Protocol, Art. 1 gous forms of reproduction" are subject to (c)(i); Text, Art. II). No special provision is compulsory reproduction licensing. (Appenmade concerning application of the com- dix, Art. 111(7Xa).) pulsory license to audio-visual Works. Audio-visual Works which were "pre

pared and published for the sole purpose of being used in connection with systematic instructional activities" may be reproduced in audio-visual form, and the textual portions thereof may be translated into a language in general use in the licensing State, under the compulsory reproduction license. (Appendix Art. III(Xb).)

Translations which are not in a language in general use in the licensing State, or which were produced without the authority of the owner of the underlying Work (including compulsory licensed 'translations) are not

subject to compulsory reproduction licensing. A compulsory reproduction may only be A compulsory reproduction license may obtained to reproduce and publish "for only be obtained to reproduce and publish educational or cultural purposes.” [Protocol, the Work "for use in connection with sysArt. I (c)(i).)

tematic instructional activities." (Appendix,

Art. III (2Xa).I* (See note 3.) The compulsory reproduction license be- The compulsory reproduction license becomes available three years after first pub- comes available after a stated number of lication of a Work if it has not then been years from first publication of a Work if published in the licensing State, or if all copies thereof have not then been distributed previous editions in the licensing State are in the licensing State "at a price reasonably out of print. (Protocol, Art. 1(c)(i).) related to that normally charged in that

State for comparable Works," or no copies have been on sale for six months in that State at "reasonably related" prices. (Ap. pendix, Art. III(2).1

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. 111(3). An applicant for a compulsory reproduc- An applicant for a compulsory translation tion license must, "in accordance with the icense must, "in accordance with the proprocedure" of the licensing State, establish cedure" of the licensing State, establish either:

either: (1) "That he has requested, and been (1) "That he has requested, and been denied, authorization" by the owner of the denied, authorization" by the owner of the reproduction right (Protocol, Art. 1(cXD)); reproduction 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(i)l; and

Licenses obtainable after three years may not be granted until after the expiration of a six-month grace period from the applicant's compliance with the foregoing. 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. III(4Xa)

(i), 111(4)(C).1 Or

Or (2) "That, after due diligence on his part, (2) "That, after due diligence on his part, he was unable to find the owner of the he was unable to find the owner of the right." (Protocol, Art. 1(c)(i)). In this case: right." (Appendix, Art. IV(1)]. In this case.

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