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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)

The applicant must send copies of his The applicant must send copies of his application to the publisher of the Work and application by registered airmail to the a representative of the country of the owner publisher of the Work and an informatioh (Protocol, Art. (c)(ii)]; and

center deisgnated by the publisher's country The license may not be granted until (Appendix, Art. IV(2)]; and after the expiration of two months from the The license may not be granted until dispatch of copies of the application (Pro- after the expiration of varying grace periods tocol. Art. IcXi1).]

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(4XaXii),

T!|(4)(b), II|(4)(c).) Developing countries establishing a sys- Developing countries establishing a system of compulsory reproduction licenses tem of compulsory translation licenses must must make "due provision" to assure: make "due provision"' to assure:

(1) an accurate reproduction" (Proto- (1) an "accurate reproduction" (Appencol, Art. 1 (cXiii)]; and

dix, Art. IV (6X(b)]; and (2) a "just compensation" (ld.]

(2) a just compensation that is consis. tent with standards of royalties normally operating on licenses freely negotiated between persons in the two countries con

cerned." (Appendix, Art. IV(6XaXi).) Payment and transmittal of compensation If national currency regulations hinder is subject to national currency regula- payment and transmittal of compensation tions." (Protocol, Art.1(cXiii).

the competent authority" shall use "all efforts "to ensure transmittal in internationally convertible currency. (Appendix,

Art. IV(6)(a)(ii).) A compulsory reproduction license is A compulsory reproduction license gen. generally "valid only for publication in the erally does not extend to the export of territory of" the licensing State. (Protocol, copies" and is "valid only for publication" Art. IcXiv).)

in the territory of the licensing State. (Ap. pendix, Art. IV(Xa).) (Copies published under a compulsory translation must bear a notice that the copies are available only for distribution in the licensing State. Ap.

pendix, Art. IV(5).) However, copies may be imported and (But the opportunity to engage in joint sold in other countries allowing such im- translation and reproduction abroad subportation and sale. (Protocol, Art. 1(c)(iv) stantially equals the consequences of per(effect of next-to-final sentence as negating mitted export. See Il pg. 5). conditions of prior sentence).]

Copies made under a compulsory repro- Copies made under a compulsory reproduction license may be manufactured out- duction license may be reproduced in printed side of the territory of the licensing State. form outside the territory of the licensing See Report, Main Committee 1l (Stockholm) State if the licensing State has no reproducfar. 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.]

Although the incorporation of compulsory-translated audio-visual texts into audiovisual Works" may be done outside the territory he licensing State unde 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

CHART 11.-REPRODUCTION RIGHTS—Continued

Existing Berne Conventions
(Rome, 1928 and Brussels,

1948)

Stockholm protocol (1967)

Berne Paris Revision (1971)

Compulsory reproduction licenses termi- Compulsory reproduction licenses termi. nate it authorized copies of the Work are nate if authorized copies of the Work are published in the licensing State. (Protocol, distributed in the licensing State at a price Art. 1(c)(vi).

reasonably related to that normally charged in that State for comparable Works. (Ap

pendix, Art. 111(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." [1d.)

CHART III.-OTHER RESERVATIONS

A-BROADCASTING RIGHTS

Same as Stockholdm.* (See note 4.)

Article 11 bis of the Rome Developed countries are bound by the
Convention guarantees the substance of Art. 11 bis of the Brussels
exclusive right of broadcast- text.
ing. However, all member
states are permitted to "reg.
ulate" this, right, subject to
the author's receiving "an
equitable

remuneration"
which may be fixed by the
"competent authority' ab-
sent agreement.

Article 11 bis of the Brus-
sels Convention extends this
right to include communica-
tion of the original broadcast
to the public by re-broadcast,
wire, loudspeaker or other
transmission. All member
states are permitted to regu-
late these rights subject to
the same condition of remu-
neration.
NO CONCESSIONS Developing countries may restrict the

right of communicating the broadcast to the
public to those communications made for
profit-making purposes." Developing coun-
tries may further regulate this right subject
to the condition of remuneration. (Protocol,
Art.(d).)

No comparable provision.

B-DURATION OF PROTECTION

NO CONCESSIONS

No comparable provision.

[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).]

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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)

Stockholm protocol (1967)

Berne Paris Revision (1971)

NO CONCESSIONS

(Protoco!, 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 lin 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 TV 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. 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 adeguate 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 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 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,

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

Stockholm protocol

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 it 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.

time thereafter,

PART 11.-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. II and IV: general y same as

right ceases 10 years from 1st publica- art. Vter: essentially 344 years for U.C.C.
tion unless exercised; no purpose restric- "world languages" and 12 years
tion; export permitted.

for "nonworld languages"--pars.
(1) and (2); all languages subject
to "teaching, scholarship, or re-
search" restriction--par. (3); ex-
port prohibited, subject to excep-
tion for copies sent to nationals
in another country for teaching,
scholarship, or research and with-

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