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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 III: TRANSLATION RESERVATION_Continued

Stockholm protocol

Paris revision of the U.C.C.

Paris revision of Berne-appendix

out commercial purpose (transla-
tions in English, French, and
Spanish may not in any case be
exported) par. (4); prohibition
on export also subject to exception
where printing within licensing
State not economically or practi-
cally feasible and under limita-
tions regarding place of printing,
whether printing lawful, and
copies must be returned in bulk

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.
required.

able for distribution in State where
license applies; retaining copy-
right notice must be given by li-
censee if original work bore U.C.C.

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 nor-
after 10 years if author failed to publish mally operating on licenses freely
translation,

negotiated between persons in the

2 countries concerned"-par. (5).
Assurance of payment and transmittal Assurance of transmittal of payment; Same as U.C.C.
subject to national currency regulations. if national currency regulations

intervene competent authority
shall make all efforts by use of
international machinery to insure
payment in internationally con-

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
language and with substantially same content is published at a
the same content is published at a price reasonably related to that
price reasonably related to that normally charged for comparable
normally charged for comparable

works.
works-par. (6).
Note: after 7 years, licensee is free

to seek new license governed
exclusively by art. 1-par. (9) of
art. Vter: art. V license available
to any national of contracting

State without recapture.
No comparable provision.......

License to translate a work published Same as U.C.C.

in printed or analogous forms of
reproduction may be granted to
broadcasting organizations in
developing countries if made for
the purpose of broadcasting, with-
out any commercial purpose, and
if sole purpose of broadcast is use
for teaching or dissemination of
results of technical research, and
if broadcasts intended for recep-
tion in same developing country-

par. (8) No comparable provision......

Under same conditions as above, Same as U.C.C.

license may also be granted to a
broadcasting organization for
translation of any text incor-
porated in an audiovisual fixation
which was itself prepared and
published for the sole purpose of
being used in connection with
systematic instructional mate-
rials"-par. (8)

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1

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

Stockholm protocol

Paris revision of the U.C.C.

Paris revision of Berne—appendix

[graphic]

Art. 1(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
reproduction in original form in country years for works of the natural and
where license might be sought.

physical sciences, including math-
ematics and of technology:

7 years
for works of fiction, poetry, drama
and music, and for art books; li-
cense available unless author-
ized copies generally distributed
in that State to public or in con-
nection with systematic instruc-
tional activities at price reasonably
related to that normally charged
in State for comparable works-

par. (1) Compulsory license to reproduce and pub- License only for use in connection Same as U.C.C.

lish for educational and cultural pur- with systematic instructional poses.

activities".
"Just compensation" for compulsory li- Just compensation that is consistent Same as U.C.C.
censes.

with standards of royalties nor-
mally operating on licenses freely
negotiated between persons in the

two countries concerned -par. (2).
Assurance of payment and transmittal sub- Assurance of transmittal of pay. Same as U.C.C.
ject to national currency regulations. ment; if national currency regula-

tions intervene, competent author-
ity shall make all efforts by use of
international machinery to insure
payment in internationally con-

vertible currency-par. (2). Export permitted.....

Export prohibited as a rule-par. (1); Same as U.C.C.

however, printing abroad and sub.
sequent return of copies in bulk
permitted if printing not possible
in licensing State due to lack of
physical facilities or economic ca-
pability, subject to limitations;
place of printing must be U.C.C. or
Berne country, and the printing

must be lawful in that country. No comparable provision......

Copies must bear notice stating Same as U.C.C.

available for distribution only in
State where license applies-par.

(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."
been published in "printed or
analogous forms of reproduc-

tion"-par. (3).
Recapture exclusive right by reproduction Recapture exclusive right by general Same as U.C.C.
and publication in country concerned. distribution to public or in con-

nection with systematic instruc-
tional activities at price reasonably
related to charge in State for com-
parable works if substantially
same language and content as
edition published by licensee-

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-
panying text into language in
general use in the country con-
cerned if "prepared and published
for the sole intrinsic purpose of
being used in connection with
systematic instructional activi-

ties"-par. (3). License to reproduce workf'in the original No compulsory license may issue to Same as U.S.C. form in which it was created."

reproduce translation not pub-
lished by the proprietor or under
his authority nor to reproduce
translation that is not in a language
that is in general use in State
issuing the license-par. (1).

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

Stockholm protocol

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 copyright; right of may make exceptions that do not authorizing broadcast and communica- conflict with the spirit of the funtion 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."

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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 Depart. ment'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 revision 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 requiring 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 UCC "will provide concrete evidence of the concern of the United States for the legitimate needs of developing countries 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.

EXHIBIT D

(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.

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