A.IV.l. This Article contains a number of provisions bearing both on licences to translate and on licences to reproduce.
Article IV, paragraphs (1) and (2) of the Appendix Licence Applications
(1) A license under Article II or Article III may be granted only if the applicant, in accordance with the procedure of the country concerned, establishes either that he has requested, and has been denied, authorization by the owner of the right to make and publish the translation or to reproduce and publish the edition, as the case may be, or that, after due diligence on his part, he was unable to find the owner of the right. At the same time as making the request, the applicant shall inform any national or international information cent¬
er referred to in paragraph (2).
(2) If the owner of the right cannot be found, the applicant for a license shall send, by registered airmail, copies of his application, submitted to the authority competent to grant the license, to the publisher whose name appears on the work and to any national or international information center which may have been designated, in a notification to that effect deposited with the Director General, by the Government of the country in which the publisher is believed to have his principal place of business.
A.IV.2. The rules governing applications for compulsory licences like the decision as to which authority shall be competent to grant them, are, generally speaking, a matter for the developing country which institutes the licensing system. These two paragraphs, however, lay down certain matters which the national procedures must take account of. In addition to what is said here, the different time limits must of course be observed.
A.IV.3. At the Paris Revision (1971) it was agreed that the request for authorisation addressed to the owner of the right must indicate that, if such authorisation is denied, the denial might serve for a basis for apply¬
ing the licence under the Appendix. It was also agreed that, before the grant of a licence under Article II or III, the competent authority should take reasonable steps to ensure that the owner of the right has an oppor¬
tunity to be aware of the application and to take such measures as may seem to him appropriate.
Article IV, paragraph (3) of the Appendix Mention of Author's Name and Title
(3) The name of the author shall be indicated on all copies of the translation or reproduction published under a license granted under Article II or Article III. The title of the work shall appear on all such copies. In the case of a translation, the original title of the work shall appear in any case on all the said copies.
A.IV.4. This covers one aspect of the author's moral right (Article 66/5).
It is self-explanatory.
Article IV, paragraphs (4) and (5) of the Appendix No Export Permitted
(4)1 a; No license granted under Article II or Article III shall extend to the export of copies, and any such license shall be valid only for publication of the translation or of the reproduction, as the case may be, in the territory of the country in which it has been applied for.
lb) For the purposes of subparagraph (a), the notion of export shall include the sending of copies from any territory to the country which, in respect of that territory, has made a declaration under Article 1(5).
Ic) Where a governmental or other public entity of a country which has granted a license to make a translation under Article II into a language other than English, French or Spanish sends copies of a translation published under such license to another country, such sending of copies shall not, for the purposes of subparagraph (a), be considered to constitute export if all of the following conditions are met:
(i) the recipients are individuals who are nationals of the country whose competent authority has granted the license, or organ¬
izations grouping such individuals;
(ii) the copies are to be used only for the purpose of teaching, scholarship or research ;
(iii) the sending of the copies and their subsequent distribution to recipients is without any commercial purpose; and
(iv) the country to which the copies have been sent has agreed with the country whose competent authority has granted the license to allow the receipt, or distribution, or both, and the Director General has been notified of the agreement by the Government of the country in which the license has been granted.
(5) All copies published under a license granted by virtue of Arti¬
cle II or Article III shall bear a notice in the appropriate language stating that the copies are available for distribution only in the coun¬
try or territory to which the said license applies.
168 WIPO — Guide to the Berne Convention A.IV.5. The provisions of the Appendix were inserted in the Convention to meet the educational needs of the developing countries concerned.
They were not meant to permit publishers in developing countries to compete with the copyright owner in supplying foreign markets. Hence, it is a fundamental principle that translation and reproduction licences only permit publication within the country granting the licence. The export of copies made under the licence is forbidden (paragraph (4)(a)). This ban on export means that no copies can be distributed except in the country (or territory—see paragraph (4)(b)) to which the licence applies.
A.IV.6. One result of this could be that the compulsory licensee is not allowed to arrange for the printing or other reproduction to be carried out in any country other than the developing country granting the licence.
The licence only operates within its territory. This could be serious for some developing countries which do not yet have their own printing and publishing facilities. The Paris Meeting therefore agreed that printing could take place outside the country in question, but only if a number of conditions were met. The country granting the licence must have, within its territory, no printing or reproduction facilities or, if such facilities exist, they are incapable for economic or practical reasons of reproducing the copies. The country where the work of reproduction is done must be a member of one of the two multilateral copyright conventions. The printer must give a number of guarantees (that all copies will be sent to the licensee, and that the work of printing is lawful according to the copy¬
right law of the place where it is done). Finally, the printing establish¬
ment in question must not be one which has been specially created in order to reproduce works for which licences have been granted under the Appendix provisions. All copies must bear the notice prescribed in para¬
graph (5). These limitations mean that it will only be in exceptional cases that a licensee will arrange for an outside printer to do the work. It was of course also understood in Paris that none of this compelled a country to permit what would otherwise be an infringement of copyright under its law. The Tunis Model Law contains provisions on this point.
A.IV.7. There was agreement in Paris (1971) on another point of con¬
struction of the Appendix : it was generally accepted that nothing in Arti¬
cle II, III or IV prohibited a compulsory licensee from employing a trans¬
lator in another country, or other compulsory licensees, licensed to pub¬
lish a translation in the same language in other countries, from using the same translation, assuming, of course, that the translation had not already been published.
A.IV.8. The conception of what constitutes export is also slightly nar¬
rowed, but this time by the Convention itself. By paragraph (4)(c), develop¬
ing countries may send copies of translations made under compulsory licence to their nationals living abroad. But here again a number of con¬
ditions must be satisfied : the language of the translation must not be English, French or Spanish ; the copies must be sent for teaching, scholar¬
ship or research purposes; there must be no commercial purpose; and there must be an agreement, notified to the Director General of WIPO, between the country granting the licence and that to which the copies are sent. As regards the expressions "commercial purpose", it was agreed in Paris (1971) that this did not mean that the governmental or other public entity carrying out the operation could not charge a price for each copy;
what it meant was that the price, if any, could not include any profit or financial gain for the entity, but could merely enable it to recover its costs.
Article IV, paragraph (6) of the Appendix Compensation for the Copyright Owner
(6)(a) Due provision shall be made at the national level to ensure (i) that the license provides, in favour of the owner of the right of
translation or of reproduction, as the case may be, for just compensation that is consistent with standards of royalties nor¬
mally operating on licenses freely negotiated between persons in the two countries concerned, and
(ii) payment and transmittal of the compensation : should national currency regulations intervene, the competent authority shall make all efforts, by the use of international machinery, to ensure transmittal in internationally convertible currency or its equivalent.
(b) Due provision shall be made by national legislation to ensure a correct translation of the work, or an accurate reproduction of the particular edition, as the case may be.
A.IV.9. This provision gives member countries the task of ensuring that any compulsory licence which may be granted to translate and/or repro¬
duce works protected by copyright carries a just compensation for the copyright owner. The method of doing so is left to the country in ques¬
tion. But two conditions must be fulfilled: the amount to be paid to the copyright owner must correspond with the sort of royalties which are prescribed in freely negotiated contracts between persons in the two coun¬
tries in question; and steps must be taken to ensure payment. (Para¬
graph (6)(a).)
170 WIPO — Guide to the Berne Convention A.IV. 10. What is just compensation depends on the facts and circum¬
stances of each case. The Convention does not, and cannot, lay down any minima but it says that the provision made at the national level should be consistent with standards of royalties normally operating on licences freely negotiated. Naturally, it will not be possible for national legislation to prescribe fixed scales or rigid rules, this being essentially a matter of contract between parties. For instance, there could be a general agreement between a national society of authors and the publishers or even the government of another country agreeing to receive a nominal royalty for translations of certain categories of works. The national law could well provide that where there is any such general agreement compensation can be on that basis.
A.IV.ll. Sub-paragraph (b) imposes an obligation to seek to ensure a correct translation or accurate reproduction, as the case may be. The author's moral right must be respected. This duty could be one for the authority granting the licences or for a body specially qualified to judge that a translation is correct or a copy a true one. Remedies are matters for the law of the country where protection is claimed (Article 66/5(3)) i.e., the country granting the licence.