ABSENCE OF A MEANINGFUL DISPUTE SETTLEMENT MECHANISM
The absence of a meaningful dispute settlement mechanism is one of the drawbacks of the Berne Convention. A meaningful dispute settlement mechanism is essential for an international convention to ensure that Member Countries comply with its obligations. When an international convention has a meaningfol dispute settlement in place, each Member Country can effectively watch over the others to make sure that the convention’s obligations are complied with by all members and seek definite action in the case of non-compliance. Notably, the Berne Convention lacks such a meaningful dispute settlement mechanism.
Although the Berne Convention has a dispute settlement mechanism where Member Countries can challenge each other’s non-compliance with copyright protection standards in the Convention, this dispute settlement mechanism is so ineffective as to be ‘virtually non-existent’.
Under Article 33(1) of the Berne Convention, any dispute between Member Countries concerning the interpretation or application of the Convention (not settled by negotiation) can be brought before the International Court of Justice (ICJ) unless ‘the countries concerned agree on some other method of settlement’. However, Article 33(2) renders this provision ineffectual in the event a Member Country makes a declaration to avoid its application. In particular, Article 33(2) states:
Each country may, at the time it signs [the Convention] or deposits its instrument of ratification or accession, declare that it does not consider
TRIPS copyright model 2003-2020 167 itself bound by the provisions of [Article 33(1)]. With regard to any dispute between such country and any other country of the Union, the provisions of [Article 33(1)] shall not apply.[1] Apart from this, as Evans observed, there is a lack of international acceptance of the dispute settlement mechanism in the Berne Convention particularly, because ‘[a]s a matter of politics, states [have] tended to avoid any form of third party adjudication that deprives them of their sovereign power of decision making’ in ‘matters of [copyright] where sensitive issues of national policy are likely to be involved’.
An outcome of the absence of a meaningful dispute settlement mechanism in the Berne Convention was that it enabled Member Countries to deviate from the Convention's rules to promote their national interests. The special exception under Section 15 of the IP Code of Sri Lanka which enabled a person to freely translate a work into Sinhala and Tamil languages in the event such work had not been published in those languages within a period of ten years from its first publication was an example of this.
As mentioned in the previous chapter. Section 15 of the IP Code violated Sri Lanka’s obligations under the Berne Convention. The reason for this was that Sri Lanka had not made use of the special exceptions in the Appendix of the Paris Act 1971 of the Berne Convention by the time it enacted the IP Code. In particular, while the Appendix of the Paris Act 1971 of the Berne Convention (which provided for special exceptions to translation rights in the case of developing countries) permitted a developing country to substitute for Article 8 of the Paris Act 1971 ‘the provisions of Article 5 of the [Berne Convention /6’6’61 as completed at Paris in 1896, on the clear understanding that the said provisions are applicable only into translations into a language in general use in the said country’, when IP Code was enacted—Sri Lanka was not a country that had ratified the Appendix. Therefore, at the time the IP Code was enacted, Sri Lanka’s obligations under the Berne Convention did not allow it to make provision for the special exception to translation rights that was envisaged in Section 15.
