Translation rights and newly independent developing countries
From about the 1950s to the early 1970s, there was pressure from newly independent developing countries to revise the way the Berne Convention protected copyright owners’ translation rights. This was because of the growing need of these countries to translate knowledge products produced in developed countries in order to promote access to scientific and technical knowledge. Although in response to the pressure from developing countries, the way in which translation rights were protected in the Berne Convention was revised in 1967 and 1971, these revisions provided minimal benefit to these countries.
In the aftermath of World War II, many developing countries gained political independence. Drahos and Braithwaite observed, ‘[t]he achievement of sovereignty by developing states left them with many responsibilities, including that of educating their populations.’ To fulfil these responsibilities, these countries tried ‘to put a priority on mass education, literacy and economic development.’ Fundamental to this was access to knowledge products, particularly in the field of science and technology, in large quantities and at affordable prices. However, developing countries faced a massive shortage of these types of works, as the production of these types of works in developing countries was very low. Therefore, they had to look to developed countries that produced these types of works on a mass scale and for export. At the same time, the developing countries also needed to translate these works into local languages. However, Article 8, which was created
by the Berlin Act 1908 and carried forward in successive versions of the Berne Convention, was inimical to this.[1] More specifically, Article 8 severely impeded the ability of developing countries to freely translate copyright protected scientific and technical works and to publish the translations in multiple quantities and at affordable prices, without undue delays. The only concession available to developing countries against Article 8 was the Berne Convention's general exceptions to copyright owners’ rights and the reservation with regard to protection of translation rights. The general exceptions to copyright owners’ rights and the reservation in respect of translation rights in the Berne Convention, nevertheless, were woefully inadequate to facilitate the timely and affordable translation of copyright protected scientific and technical knowledge products and the publication of these translations in large quantities in developing countries. The latest version of the Berne Convention in force in the mid-twentieth century was the Brussels Act 1948. The Brussels Act contained a mixture of general exceptions to copyright protection. For instance, Article IbiA 1 ) provided that Member Countries had the discretion to exclude ‘'political speeches and speeches delivered in the course of legal proceedings’ from the Convention's protection. In terms of Article 2bis(2), Member Countries had the discretion to ‘determine conditions under which lectures, addresses, sermons and other works of the same nature may be reproduced by the press’. Article 9(2) stated that ‘[articles on current economic, political or religious topics may be reproduced by the press unless the reproduction thereof is expressly reserved’. According to Article 9(3), the protection of the Berne Convention did not apply to ‘news of the day nor to miscellaneous information having the character of mere items of news’. Article 10(1) permitted Member Countries ‘to make short quotations from newspaper articles and periodicals, as well as to include them in press summaries’. Article 10(2) gave the discretion for the Member Countries to grant a ‘right to include excerpts from literary or artistic works in educational or scientific publications, or in chrcstomathies, in so far as this inclusion is justified by its purpose’. In addition. Article 1 Otó gave Member Countries the discretion ‘to determine the conditions under which recording, reproduction, and public communication of short extracts from literary and artistic works may be made for the purpose of reporting current events by means of photography or cinematography or by radio diffusion’. Although the Brussels Act 1948 allowed a mixture of exceptions which could have been applied against copyright owners’ translation rights, these exceptions suffered from three main defects. Firstly, since the Brussels Act did not expressly mention translation in the general exceptions, it was not so clear whether these exceptions could be applied to translation rights.
WIPO copyright model 1979-2003 133 literary and dramatic works protected under the Convention where these works [were] in other languages’.[2] Although the failure of the Brussels Act to mention specifically that its general exceptions to copyright owners’ rights would apply to translation may have been illogical, since ''the making of reproduction of works in their original language will be of little use to populations which do not speak or understand that language’,
Secondly, even if it was assumed that the general exceptions under the Brussels Act 1948 applied to translation rights, the scope of these exceptions was too narrow to facilitate the timely and affordable translation of copyright protected scientific and technical books and learning materials and the publication of these translations in large quantities. This was because all the relevant general exceptions to translation of these knowledge products was concerned with ‘consumptive uses’, that is, with translating parts of knowledge products for the purpose of incorporating them within another product, as opposed to ‘bulk uses’, that is, translating the whole knowledge product and reproducing the whole translation in large quantities which was and remains the ‘most pressing need of developing countries’.
The third defect with the general exceptions in the Brussels Act 1948 concerned their clarity. In particular, the way in which the Brussels Act defined the exceptions was not so clear when compared with the way in which it defined copyright owners’ rights. The reason for this was that the Brussels Act spelt out the general exceptions in a broad language with the objective of granting flexibility to Member Countries to define the precise nature and scope of these exceptions in a manner that could protect the welfare interests of their citizens. However, most of the developing countries (especially at the time of their independence) lacked expertise and institutional capacity to transform this broad language into meaningful principles in a domestic context. This problem was compounded by the absence of a uniform and well-defined set of limitations and exceptions at the international level.
In addition to the general exceptions that could be applied to copyright owners’ translation rights, the Brussels Act 1948 also provided for a special exception to these rights. This special exception was the reservation that could be applied with regard to Article 8 of the Brussels Act which guaranteed copyright owners’ right to translate their literary and scientific works. Although this reservation allowed a country to limit the duration of translation rights for a period of ten
years, it did little to facilitate the timely translation of copyright protected scientific and technical books and learning materials and the publication of translations. In any case, many developing countries, including Sri Lanka, were unable to make use of this reservation because of their prior commitments under the Berne Convention. To understand this properly, we needed to examine how the reservation in respect of translation rights in the Berne Convention originated and evolved up until the Brussels Act. The ability of a country to make reservations in respect to copyright owners’ rights, including translation rights, was first introduced to the Berne Convention at its Berlin revision (Berlin Act 1908).bi> This was with the objective of reducing the rigor created by extended standards of protection of copyright owners’ rights, including translation rights, in the Berlin Act 1908. The Berlin Act 1908 allowed countries that were members of the Berne Union and who had ratified the Berlin Act the option of continuing with their existing obligations under the previous texts of the Berne Convention. This was permitted instead of undertaking the new obligations in the Berlin Act, as regards any specific point.[3] At the same time, countries that were not members of the Berne Union but who were acceding to the Berne Convention for the first time were allowed an option of undertaking obligations under provisions of either the original text of Berne Convention (text of 1886) or the Paris Additional Act 1896, as the case may be, in the place of the corresponding provisions of the Berlin Act.7X Accordingly, Member Countries of the Berne Union that were only bound by the original text of the Berne Convention were given an option of continuing to limit translation rights for a period of ten years as provided in Article 5 of that text. Similarly, Member Countries that were bound by the Paris Additional Act 1896 were given the option to limit the duration of translation rights as provided in Article 1 III.
The considerable use of reservations by Member Countries in the aftermath of the Berlin Act 1908 came to be seen as having an adverse impact on the objectives of the Berne Convention. In particular, by 1928, ‘eighteen states had availed themselves of this facility, the majority of reservations relating to translation rights’. As Ricketson and Ginsburg said, ‘[t]his obviously gave rise to considerable complexity and confusion in determining the exact relationship between
WIPO copyright model 1979-2003 135 different states of the [Berne] Union’.[4] Also, according to French commentators Marcel Plaisant and Oliver Pichot, these reservations ''resulted in the rupture of unity’, rendering the Berne Convention ‘no longer a tablet of the law’ but ‘a mosaic pavement’.
The adverse impact of reservations on the objectives of the Berne Convention created a need for elimination of the system of reservations from the Convention. In fact, this became the prime concern of the Rome revision of the Berne Convention held in 1928.
Although the outcome of the Rome revision [Rome Act 1928) made certain changes to the system of reservations in the Berne Convention, the reservation with regard to translation rights survived nearly intact. In particular, while the Rome Act 1928 allowed the existing members of the Berne Union to continue with their reservations, it permitted the new members to be bound by Article 1 III of the Paris Additional Act 1896 on the condition that the provisions in the Article applied ‘only to translations into the language or languages of that country’. This enabled translation rights with regard to a particular language to cease when the copyright owner had not published a translation in that language within the first ten years from the publication of the original work. The subsequent revision of the Berne Convention at Brussels (Brussels Act 1948) maintained this status quo.
Even though the Brussels Act 1948 maintained the reservation with respect to copyright owners’ translation rights under which Member Countries were allowed to limit the duration of these rights, it could not be considered as an effective means that facilitated the timely translation of copyright protected scientific and technical books and learning materials. There were two main reasons for this. Firstly, the maximum effect of this reservation was to limit translation rights for a period of ten years. In other words, this meant that a country had to wait for a period of ten years if it were to allow lawful translations to be made and published out of a copyright protected knowledge product in the absence of the consent of its copyright owner. However, this waiting period was too long with regard to scientific and technical books and learning materials. Aside from these types of works becoming quickly rendered outdated because of the rapid developments in science and technology, the waiting period of ten years meant that people in developing countries (especially students) were deprived of new
knowledge produced in developed countries. Therefore, the reservation relating to translation rights in the Brussels Act was virtually useless to developing countries. As Olian observed: Though taken advantage of by a handful of members of the Union, [the reservation in respect of translation rights in the Brussels Act] actually did very little to ensure that works of foreign authors were readily available in the national languages of all countries. The ten year duration of exclusive rights was simply too long, especially considering the need for contemporaneous learning materials and the rapid speed at which most works of a scientific or technical character become obsolete.[5] The second reason why many developing countries, particularly former British colonies like Sri Lanka, were unable to make use of the reservation in respect of translation rights in the Brussels Act 1948 or the Rome Act 1928 was because of their previous commitments under the Berne Convention. In particular, by the time of their independence, these developing countries had already become members of the Berne Union by virtue that their former colonial masters had acceded to the Berne Convention without making any reservation with regard to protection of translation rights. Thus, there was no room for these countries to make new reservations, since the provisions of the Berne Convention did not allow it. In fact, the experience of Sri Lanka provides a good example in this connection. Sri Lanka gained independence in 1948 and, thereafter, decided to accede to the Rome Act 1928 of the Berne Convention in 1959 in its own right as an independent state. To give effect to this, the Prime Minister of Sri Lanka sent the country’s ''instrument of accession’ to the Swiss Federal Political Department and gave notice that Sri Lanka would be acceding to the Rome Act 1928 of the Berne Convention. This was subject to the important condition that Sri Lanka lreserve[d] for itself the right to enact local legislation for the translation of educational, scientific and technical books into the national language.’
Sri Lanka to make the reservation in respect of translation rights which a new member of the Berne Convention was generally allowed to make.[6] Thus, the reservation which Sri Lanka made in its ''instrument of accession’ of 1959 was without effect. In any case, the Swiss Government interpreted this ‘instrument of accession’ as a ‘declaration of continuity’ which was eventually confirmed by the International Office of the Berne Convention.36 Like Sri Lanka, a majority of newly independent developing country Members of the Berne Convention gradually began to understand that the way copyright owners’ translation rights were protected in the Berne Convention was a stumbling block for timely and affordable translations. Peter Yu observed, ‘[o]nce [developing] countries joined the international community following their declaration of independence, they “became more assertive of their rights and aware of their international obligations’” under the Berne Convention.36 Since developing countries were aware that the Berne Convention was an obstacle to solving their problem of access to scientific and technical knowledge (through timely and affordable translation of copyright protected scientific and technical books and learning materials), these countries were torn between affirming and denouncing international obligations of the Berne Convention into which their former colonial rulers have entered on their behalf.
Upon their independence, the developing country Members of the Berne Convention had three main options as to their obligations under the Convention. These were:
- A) Denounce the Berne Convention and become a free-rider of copyright protected works, without undertaking any obligation in relation to international copyright; or
- B) Denounce the Berne Convention and, formulate and accede to a new international copyright instrument which would be more congenial for the developing countries; or
- C) Continue with the Berne Convention while seeking reforms that would make the Convention more congenial to the interests of developing countries.
- [1] See Carolyn Deere, The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries (Oxford University Press, 2009) 37. 2 The position remains the same in the Paris Act 1971 of the Berne Convention.
- [2] Ricketson and Ginsburg, above n 24, vol 1, 835. 2 Ibid. 3 Ibid., 837-838. 4 Ruth L Okediji, ‘The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries’ (Issue Paper No 15, ICTSD and UNCTAD, March 2006) 6
- [3] Ricketson and Ginsburg, above n 24, vol 1, 105. 2 See Berlin Act 1908 of the Berne Convention, art 27. 3 See Ibid., art 25. 4 See Paris Additional Act 1896 of the Berne Convention, art 1III. 5 Ricketson and Ginsburg, above n 24, vol 1, 105. 6 Ibid.
- [4] Ibid. 2 Marcel Plaisant and Oliver Pichot, La Conference de Rome: Commentaire pratique de la nouvelle Convention pour la protection internationale de la propriété littéraire et artistique ( 1934) 34 cited in Ricketson and Ginsburg, above n 24, vol 1, 105. 3 Ibid. 4 Rome Act 1928 of the Berne Convention, art 27(2). 5 Ibid., art 25(3). 6 See Brussels Act 1948 of the Berne Convention, art 25(3); Brussels Act 1948 of the Berne Convention, art 27(2).
- [5] Irwin A Olian Jr, ‘International Copyright and the Needs of Developing Countries: The Awakening At Stockholm and Paris’ (1974) 7(2) Cornell International Law Journal^!, 95. 2 See ‘Documents of the Twentieth Session including the Report of the Commission to the General Assembly’ [1968] II Yearbook of the International Law Commission 1,15. 3 See Chamila Talagala, ‘Translation and the International Copyright Crisis: The Sri Lankan Experience During the Early Years of Independence’ (2017) 39(3) European Intellectual Property Review 153.
- [6] Ibid. 2 See ‘Documents of the Twentieth Session including the Report of the Commission to the General Assembly’ [1968] II Yearbook of the International Law Commission 1, 15. 3 Peter K Yu, ‘A Tale of Two Development Agendas’ (2009) 35 Ohio Northern University Law Review 465, 470 (emphasis added) (citations omitted). 4 Ibid. 5 Drahos and Braithwaite, above n 58, 74.
