PARIS CONFERENCE FOR THE REVISION OF THE BERNE CONVENTION
The Paris Conference for the revision of the Berne Convention held in 1971 was a ‘package deal’ between developed and developing countries which involved amendments to both the Berne Convention and the UCC. The need for amendment of the UCC arose as a result of the Berne Safeguard Clause. As noted earlier, this was because the Berne Safeguard Clause acted as a stumbling block to developing countries who preferred to accede to the UCC. These countries advocated for the deletion of the Berne Safeguard Clause from the UCC. However, developed countries were not willing to accept this proposal without raising the general level of copyright protection in the UCC at the same
time.[1] Thus, deliberations ensued on both the Berne Convention and the UCC which eventually led to the general agreement that ‘both conventions should be revised simultaneously, with special attention being paid to the needs of developing countries.’
The main outcome of the Paris revision of the Berne Convention is the ‘Berne Appendix’ (or Paris Appendix) which was introduced in the Paris Act 1971. In particular, the Berne Appendix in the Paris Act 1971 contains a special copyright regime for developing countries. Among other things, it offers developing countries the option of either substituting Article 5 of the 1886 version of the Berne Convention as revised by the Paris Additional Act 1896 in respect of the translations into languages of general use in these countries (the effect of which is the forfeiture of translation rights in respect of these languages in the event that the rights are not exercised within a period of ten years) or of making use of the faculty which provides for granting of compulsory licenses for translation.
Evaluation of the provisions in the Paris Act on translation rights The Paris Act 1971 of the Berne Convention carries the same provision that is in Article 8 of the Berlin Act 1908. Accordingly, copyright owners’ translation rights are protected throughout the term of protection of their right of reproduction.
There are certain general exceptions in the Paris Act 1971 with regard to the copyright owners’ right of reproduction. However, it is not clear whether or not these exceptions would apply to translation rights. The main general exception to copyright owners’ right of reproduction in the Paris Act 1971 is provided in Article 9(2). In particular, this Article states:
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
Article 9(2) of the Paris Act 1971 does not mention translation and only talks about reproduction. Also, there are no express provisions in other articles of the Paris Act stating that Article 9(2) applies to translation rights. Ricketson and Ginsburg observed:
On its face, this omission imposes severe restrictions on persons wishing to use literary and dramatic works protected under the Convention where these
works arc in other languages. While the Convention makes provision for the reproduction, in particular circumstances and for certain purposes, of such works in their original language, these exceptions arc not expressed to be applicable where translations of those works are made in the same situation. This appears illogical, as 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.[2] It is pertinent to note that the (entire) provision in Article 9(2) of the Paris Act 1971 was first introduced to the Berne Convention at the Stockholm Revision in 1967. The question whether this provision extended to translation rights was considered at the Stockholm Conference. In particular, the Main Committee I, which was set up with the task of considering the proposals for revising the substantive copyright provisions of the Berne Convention, ‘considered that a general rule regarding exceptions to the right of translation was necessary and should be inserted to Article 8’.
The basis for applying the interpretation given in its Report is unclear, and is open to challenge. Thus, the relationship between reproductions and translation may be disputed; likewise, the conclusion that a contrary interpretation leads to an absurd or unreasonable result justifying reference to the unanimous view of the delegates expressed in the report may also be doubted.
As such, the question whether Article 9(2) of the Paris Act 1971 extends to translation rights remains unclear.[3] Be that as it may, none of the general exceptions to the copyright owners’ rights in the Paris Act 1971, including Article 9(2), oiler any material help to developing countries like Sri Lanka to facilitate the timely and affordable translation of copyright protected scientific and technical knowledge products. This is because, as Okediji noted, all these general exceptions ‘pertain primarily to use-access, i.e. the freedom of others to utilise portions of the work once they are in possession of a legitimate copy.’
The main features of the Berne Appendix (Paris Appendix) are: (1) the compulsory licensing system introduced in respect to translation and reproduction of copyright protected literary and scientific works in developing countries and (2) the alternative possibility of limiting translation rights through a special reservation. These features are structurally similar to the licensing system and the special reservation in the Stockholm Protocol. As a result, the Berne Appendix suffers from many of the same defects in the Protocol. Of these, the most noteworthy is the waiting period before compulsory licenses for translation can be granted. In particular, according to Article 11(2), a translation license in respect of a copyright protected work can only be granted ‘after the expiration of a period of three years’ from the date of the first publication of that work. However, there is a noteworthy exception to this in Article 11(3) which makes the Appendix more favourable to developing
WIPO copyright model 1979-2003 151 countries like Sri Lanka when compared with the Protocol. In particular, Article 11(3 )(a) provides: In the case of translations into a language which is not in general use in one or more developed countries which arc members of the Union, a period of one year shall be substituted for the period of three years referred to in paragraph (2)(a). Accordingly, although Article II(2)(a) of the Berne Appendix (similar to Article l(b)(ii) of the Stockholm Protocol) generally requires an applicant for a compulsory translation license in respect of a copyright protected work to wait for a period of three years from the publication of that work, Article II(3)(a) of the Appendix enables an applicant in Sri Lanka to shorten this waiting period for one year provided that the translation is into Sinhala. This is because Sinhala is not in general use in any developed countries. The other provisions in the Berne Appendix, nonetheless, make the compulsory licensing system restrictive and onerous for Sri Lanka (and other developing countries) in many ways.[4] In particular, these provisions (1) make it doubtful as to whether or not the compulsory licenses cover works published online, (2) restrict the purposes in respect to which licenses may be obtained, (3) impose detailed and complicated administrative procedures that should be followed when obtaining licenses, (4) prohibit granting of licenses for reproduction in respect of translations made under licenses for translation, (5) place a ban on the export of copies made under compulsory licenses and (6) strengthen the right of copyright owners’ for just compensation.
