Berne: The Appendix for Developing Countries, Article 21 and Articles I to VI

In one line

The Berne Appendix lets a developing country grant compulsory licences to translate and to reproduce foreign works for teaching and research, on conditions so demanding that the machinery has been used almost never.

In exam wording: Article 21 of the Berne Convention brings in an Appendix which forms an integral part of the Convention and which permits a country regarded as a developing country in conformity with the practice of the General Assembly of the United Nations to substitute, by declaration, compulsory licences for the exclusive rights of translation under Article II and of reproduction under Article III, subject to the conditions in Articles I to VI.

Why this Appendix exists

Because of the failure of the Stockholm Protocol. At the Stockholm revision conference of 1967 the developing countries obtained a Protocol Regarding Developing Countries which would have permitted wide compulsory licensing for translation and reproduction, shorter terms and broad teaching exceptions.

The industrialised countries refused to ratify. The result was that the substantive provisions of the Stockholm Act never entered into force at all, and the Union faced the prospect of a split.

The Paris revision of 1971 was the compromise. The Protocol was withdrawn and replaced by this Appendix, which grants the same kinds of licence but hedges them with conditions.

And the immediate context was the alternative forum. UNESCO administered the Universal Copyright Convention, to which many developing countries were party, and there was a real prospect of countries leaving Berne for it. The Appendix and the parallel amendment of the Universal Copyright Convention in 1971 were negotiated together.

The Appendix, article by article

Article I(1): any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations may, by a notification deposited with the Director General at the time of ratification or accession or at any later time, declare that it will avail itself of the faculty provided for in Article II, in Article III, or in both.

Article I(2): any such declaration is effective for ten years from the entry into force of the Paris Act, or for the balance of that period, and is renewable for further ten year periods.

Article I(3) and I(5): a country that ceases to be regarded as a developing country loses the faculty, but a declaration remains effective for a defined transitional period.

Article II is the translation licence. Any country that has declared under Article I may substitute for the exclusive right of translation in Article 8 a system of non exclusive and non transferable licences, granted by the competent authority, to translate a work into a language in general use in that country and to publish the translation in printed or analogous forms of reproduction, for the purpose of teaching, scholarship or research.