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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 UCC-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 bs 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
“musical, dramatic and cinematographic works, and paintings, engravings and sculpture. However, licenses to translate works composed mainly of illustrations may also authorize the reproduction of the illustrations, subject to the conditions of V quater. The Conference agreed that the lyrics of songs were not subject to the translation license.
Article V ter also allows developing countries to license broadcasting organizations to translate published works for use in non-commercial broadcasts intended for teaching or disseminating the results of research, or in recordings used for such broadcasts; the license may also cover texts of audio-visual works which were prepared for use in systematic instructional activities.
Developing countries which grant compulsory licenses are protected from retaliation. Thus no developed country can reduce the level of protection which it is obliged to give to works from such developing countries.
CONDITIONS OF COMPULSORY LICENSES
Articles V ter and V quater impose substantially similar conditions for the granting of compulsory translation and reproduction licenses. The applicant for the license must have requested and been denied authorization by the owner of the particular right, and must inform a designated information center of his request. If the owner cannot be found, copies of the license application must be sent to the publisher and a designated information center. A translation license cannot be granted until a further six months (for 3-year licenses) or nine months (for 1-year licenses) after the applicant requests a license from the owner or sends his application to the publisher. No license can be granted if an authorized translation is published during this period. There is a similar six-month grace period for reproduction licenses, but it is concurrent. The grace period for translation begins after expiration of the one- or three-year period.
Translation and reproduction licenses are not transferable; do "not extend to the export of copies,” and are "valid only for publication in the territory" of the licensing country. Copies must bear a notice that they are for distribution only in the licensing state, the UCC copyright notice where required, the title, and the author's name. Translations must be "correct," reproductions must be "accurate."
Due provision must be made “at the national level” to insure that licenses provide “just compensation" consistent with normal royalty standards for "freely negotiated" licenses between persons of the two countries, and payment and transmittal. However, if currency regulations interfere (implying they may), "all efforts" should be made to insure transmittal in international convertible currency “or its equivalent.”
TERMINATION OF COMPULSORY LICENSES
A compulsory translation license under 1 ter is terminated if a translation is published in the developing country by the owner (or with his authorization) with substantially the same content as the edition for which the license was granted, at a price reasonably related to that normally charged in the country for comparable works. A compulsory reproduction license is also terminated by distribution of authorized copies of the edition in the country, at "reasonably related" prices, to the general public or in connection with systematic instructional activities. In either case any copies made before the license is terminated can continue to be distributed. Translation and reproduction licenses cannot be granted when the author has withdrawn all copies from circulation.
These provisions were essentially the provisions of V ter and V quater, as set forth in the draft texts submitted to the ICC and Berne revision conferencesthe "package deal.” However, the "package" was opened and its contents considerably changed by addin further provisions to the text and adopting "interpretations" which could influence the application of the license provisions as effectively as formal amendments. These are some of the changes.
(1) The right of translation was extended to include broadcasting.
(2) While compulsory licenses to translate into languages in general use in developing countries were only to be granted three years after publication. V ter was amended at the conferences to permit a developing country to grant such licenses after one year if all developed countries using the language agree. Thus, Brazil, by agreement with Portugal, will be free to translate American novels and other works into Portuguese, Brazil's national language, one year (plus nine months) after publication in the U'nited States. The three-year limit cannot be reduced for compulsory license translations into English, French, or Spanish. HOW BROAD IS "SCHOLARSHIPS" ? (3) The one and three-year compulsory translation licenses were supposed to be used, according to V ter, "only for the purpose of teaching, scholarship or research.” However, the Report of the UCC conference states that "scholarship" refers not only to instructional activities in schools and colleges “but also to a wide range of organized educational activities intended for participation at any age level and devoted to the study of any subject." Delegates from developing countries made it clear that they understood the area of use to be extremely broad, and that it included the sale of copies to the public. Similarly, the compulsory reproduction license, according to V quater, was supposed to be used for the publication of editions "for use in connection with systematic instructional activities.” However, the Report states that “this term is intended to include not only activities in connection with the formal and informal curriculum of an educational institution, but also systematic out-of-school education.” And some delegates again indicated their view that sale of copies to the public was permitted. Discussion at the conference reflected broad, loose interpretation of educational and instructional activities that could easily encompass the translation or reproduction and general sale--of novels and other trade books on optional reading lists of schools, adult education centers, radio or television lecture series, correspondence courses, and the like. Some delegates indicated their belief that any use that promoted "culture" served an educational purpose.
(4) A basic premise of the “package deal” was that copies produced under compulsory licenses could not be expected; and licenses were to be "valid only for publication in the territory' of the developing country which grants the license. However, the developing countries succeeded in amending V ter to allow a licensing country to export copies of translations produced under compulsory license, in any language except French, English or Spanish, to its nationals in other countries, for “teaching, scholarship or research.”
(5) A fundamental question is whether the holder of a compulsory license can have the copies printed in another country. If a developing South American, African or Asian country grants one of its nationals a license to translate or reproduce an American biography, novel of textbook, may he have the edition printed in Taiwan, or East Germany, or Czechoslovakia ? May he hire a translator in another country? And may nationals of several countries, all granted compulsory licenses for the same American work, use the same translator and have their copies produced abroad by the same printer? Developing countries strongly resisted an explicit requirement that printing be done in the country granting the compulsory license. They argued that some countries did not have the facilities to print translations or reproductions.
It was also argued, incorrectly, that this imposed a “manufacturing clause.” But the manufacturing clause requires an American author to print his books in the U.S. as a condition for securing U.S. copyright. The printing limit proposed by Argentina and Great Britain was a limit on developing countries that grant compulsory licenses, to protect the author against an expanded use of those licenses. The limit would not restrict the author's right to have his book printed where he chooses. If he grants a voluntary license to a publisher in a developing country, the limit would not apply.
Actually, the limitation was already inherent in the provisions of V ter and V quater which prohibited the export of copies made under compulsory licenses and prescribed that the licenses "be valid only for publication" in the licensing country. Article VI of the UCC defines “publication" as "the reproduction in tangible form and distribution to the public of copies of a work. . ."
After much discussion, a formal "interpretation" of Articles V ter and quater, and the corresponding Articles in the Berne Convention, was prepared by a joint drafting committee of Berne and UCC countries for insertion in the reports of both conferences. The interpretation has essentially the same effect as an amendment of the texts. It declares that the provisions prohibiting "export” of copies and making compulsory licenses "valid only for publication" in the country granting the license “are considered as prohibiting a licensee from having copies reproduced outside” that country. However, it then declares that the prohibition does not apply where the licensing state does not have printing or reproduction facilities, or its facilities "are incapable for economic or practical reasons of reproducing the copies" ; the copies are reproduced in a Berne or UCC country; they are returned in bulk to the licensee; the reproduction is lawful where done ; and it is not done in a plant especially created for reproducing works covered by compulsory licenses. The interpretation also states that v ter and V quater
do not prohibit a compulsory licensee from employing a foreign translator, or several licensees in different countries from using the same unpublished translation. The interpretation states that no compulsory license should be used for commercial purposes.
EFFECT ON AUTHORS' RIGHTS How adversely these last minute changes will affect authors' rights needs more careful consideration that the delegates could give, and a better knowledge of publishing than many of them possessed. The chairman of the Conference, in his closing remarks, observed that the system of compulsory licenses would not satisfy “the world of authors" in the developed and developing countries. He hoped that: compulsory licenses would be an exception, as they had been since 1952. And a principal reassurance offered authors by the architects of the 1971 revisions is: that few licenses will be issued. But if that is so, then there is no need to adopt these new provisions which sharply downgrade the level of protection in UCC and Berne. A more realistic forecast may be a substantial increase in compulsory licenses : because the time period for translations is reduced from seven years to one year, or three years; because compulsory reproduction licenses are expressly sanctioned; and because the last minute changes on "outside" translation and printing make compulsory licenses cheap and easy to use.
WHY AUTHORS ARE UNHAPPY
Some architects of the 1971 revisions assume it contains reasonable safeguards for authors. But, as the chairman noted, their views are not likely to satisfy the "world of authors," and with good reason. First, the architects cite the "limited” purpose of compulsory licenses. But "education," "scholarship" and "systematic instructional activities” have been broadly interpreted in the Report, and by delegates from several developing countries, so there is no real obstacle to the compulsory translation or reproduction of books for sale, in large part, to a general reading audience. Moreover, there is no practical way for an author to stop the improper issuance or misuse of a license.
Second, the architects assume that authors and publishers can prevent compulsory translation licenses by having authorized translations published. But translations cost money to prepare and to publish. And they must be kept in print, since a six-month lapse would still open the door for compulsory licensing. Actually few authors or publishers could afford the expenses of issuing translations of book into several languages as insurance against compulsory licenses. They need some hope of an audience, and market, for the translation; and it is precisely that which the compulsory license system may deny them. The architects also suggest that authors can prevent compulsory licenses by issuing a translation in the six- or nine-month grace period after the request for a license is received. But even assuming translations could be made and published so quickly, this is totally unrealistic. The applicant is not obliged to exercise his compulsory license within a specified time, or to use it at all. Once he gets it, he can just sit with it. Therefore, an author or publisher could not know whether he was spending money for a translation to defeat a compulsory license that never would be used. Furthermore, while publication of an authorized translation, anywhere, would prevent a compulsory translation license for that language, it exposes the translation to a compulsory reproduction license.
If the 1971 UCC comes into effect, American authors and publishers will be faced with these problems for the thousands of works already in print that have not been translated into French, Spanish, Portuguese, or other languages used in developing countries.
CAN AUTHORS PROTECT THEMSELVES ?
Third, the architects assume that authors can protect themselves against compulsory reproduction licenses, and terminate translation and reproduction licenses that have been granted, by distributing copies of an authorized edition in the developing country which issued the license. But this requires not only distribution, but distribution at a "price reasonably related" to the price "normally” charged there "for comparable works.” Finding a distributor in some countries can itself be a problem. Finding one who will sell an authorized edi. tion in competition with the compulsory-license edition may be more of a problem; even when the license terminates, the backlog can be sold off. The difficulties may multiply where the developing country owns or controls its publishing facilities. Will a state-owned publishing house distribute the author's