Paragraph (1) Method of doing so
(I) Any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations which ratifies or accedes to this Act, of which this Appendix forms an integral part, and which, having regard to its economic situation and its social or cultural needs, does not consider itself immediately in a position to make provision for the protection of all the rights as provided for in this Act, may, by a notification depos¬
ited with the Director General at the time of depositing its instru¬
ment of ratification or accession or, subject to Article \ ( 1 ) r . at any time thereafter, declare that it will avail itself of the faculty provided for in Article II, or of the faculty provided for in Arti¬
cle HI, or of both of those faculties. It may, instead of availing itself of the faculty provided for in Article II, make a declaration accord¬
ing to Article \'(\)la).
A.I.I. This paragraph provides answers to the questions "who, how, when and as to what?".
A.1.2. Who may take advantage of the Appendix? Two tests are im¬
posed. The first depends on the country itself: "having regard to its economic situation and its social or cultural needs, does not consider itself immediately in a position to make provision for the protection of all the rights as provided for in this Act" (i.e., the Paris Act (1971)). As has been seen above (Article 36), member countries are bound to provide for such protection. The "economic situation" and "social or cultural needs" are for the country concerned.
A.1.3. The second test is more objective: "any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations". The same formula appeared in the Stockholm Protocol and was found preferable to other possible alternatives. The qualification is not uniform because the lists vary as between the different United Nations organs e.g., the Intergovernmental Committee of the U.N. Development Programme (UNDP), the Council of UNCTAD and the U.N. Committee on Contributions. It seemed best to refer to the practice of the General Assembly of the United Nations. At the Paris Revision it was understood that the expression "country regard¬
ed as a developing country in conformity with the established practice of
the General Assembly of the United Nations" did not allow for the draw¬
ing up of a list of such countries which would not be susceptible to changes in the future, not only because the stage of development of partic¬
ular countries may change, but also because the practice of the General Assembly may undergo revision in the sense that the criteria on which such practice is based may alter. Whether any country is, at any given time, a developing country for the purposes of the Appendix has to be decided on the basis of the practice of the General Assembly prevailing at the time relevant for deciding the question.
A.1.4. The fact that a country is considered a developing country in no way obliges it to make use of the licensing scheme in the Appendix. Each country decides, in the light of its economic situation and its social and cultural needs, whether or not it wishes to provide for such a scheme.
A.1.5. How to do so? It is enough to deposit a notification or declara¬
tion with the Director General of WIPO.
A.1.6. When? Either on ratification or accession to the substantive pro¬
visions of the Paris Act, or at any time thereafter, although bearing in mind that a choice between the compulsory licences to translate and the ten-year regime for translation, once made, is irrevocable (see Article V(l) below).
A.1.7. Finally as to what may these powers be exercised? The right of translation (Article II or V), the right of reproduction (Article III) or both together. The country in question must notify which.
Article I, paragraph (2) of the Appendix Duration of the Effectiveness of the
Notice or Declaration
(2)1 a) Any declaration under paragraph (1) notified before the expiration of the period of ten years from the entry into force of Articles I to 21 and this Appendix according to Article 28(2) shall be effective until the expiration of the said period. Any such declara¬
tion may be renewed in whole or in part for periods of ten years each by a notification deposited with the Director General not more than fifteen months and not less than three months before the expiration of the ten-year period then running.
lb) Any declaration under paragraph (I) notified after the expira¬
tion of the period of ten years from the entry into force of Articles I to 21 and this Appendix according to Article 28(2) shall be effective until the expiration of the ten-year period then running. Any such declaration may be renewed as provided for in the second sentence of subparagraph a ■
150 WIPO — Guide to the Berne Convention A.1.8. This paragraph provides that any notice (or declaration) depos¬
ited with the Director General of WIPO is effective for ten years from the coming into force of the substantive provisions of the Paris Act, i.e., until October 10, 1984. But it can be renewed, in whole or in part (that is to say a country may, on renewal, decide that it needs only one of the two faculties it previously claimed), for further successive periods each of ten years.
A.1.9. Renewal is however subject to a condition aimed at ensuring that those countries who have to suffer the impact of the Appendix on the works of their nationals are given reasonable notice. The deposit must be made between the fifteenth and the third month before the current ten year period expires. In fact, this means that all renewals must take place between July 10, 1983, and July 10, 1984. During that year, the devel¬
oping countries which have opted for one or more of the provisions of the Appendix will have to decide their future course of action on the point.
A.I.10. If a declaration is made after October 10, 1984, it is valid until the end of that ten-year period i.e., until October 10, 1994. Again
renewal is possible.
Article I, paragraph (3) of the Appendix Ceasing to be a Developing Country
(3) Any country of the Union which has ceased to be regarded as a developing country as referred to in paragraph (I) shall no longer be entitled to renew its declaration as provided in paragraph (2), and, whether or not it formally withdraws its declaration, such country shall be precluded from availing itself of the faculties referred to in paragraph (1) from the expiration of the ten-year period then run¬
ning or from the expiration of a period of three years after it has ceased to be regarded as a developing country, whichever period expires later.
A.I.I 1. This provision envisages a future which it is hoped will shortly be upon us since it assumes progress. If a country ceases to be a develop¬
ing country, renewal is no longer possible. After the end of the current ten-year period (or three years after the country ceased to be developing, if later), reproduction and/or translation under the compulsory licence must cease. The fact that the compulsory licensing powers do not cease immediately is explained by the fact that transition from under-develop- ment happens progressively and not all at once and the Convention must be sufficiently flexible to allow for this fact.
A.I.12. Note that there is no question of such a country taking formal steps to withdraw its declaration. Whether or not it does so, its right to make use of the Appendix ceases when the time limit expires.
Article I, paragraph (4) of the Appendix Existing Stocks
(4) Where, at the time when the declaration made under para¬
graph (I) or (2) ceases to be effective, there are copies in stock which were made under a license granted by virtue of this Appendix, such copies may continue to be distributed until their stock is exhausted.
A.I. 13. This completes the provisions governing what happens when a country ceases to be able to make use of the Appendix. Copies which have, before that time, been made under compulsory licences may be sold or otherwise distributed until the stock runs out.
Article I, paragraph (5) of the Appendix Declarations concerning certain Territories
(5) Any country which is bound by the provisions of this Act and which has deposited a declaration or a notification in accordance with Article 31(1) with respect to the application of this Act to a particular territory, the situation of which can be regarded as analo¬
gous to that of the countries referred to in paragraph (I), may, in respect of such territory, make the declaration referred to in para¬
graph (1) and the notification of renewal referred to in paragraph (2).
As long as such declaration or notification remains in effect, the provisions of this Appendix shall be applicable to the territory in respect of which it was made.
A.I.14. This provision is linked with Article 31 which covers dependent territories. If a country is responsible for the external relations of another territory and the situation in that territory is analogous to that of a developing country, the country may declare that the Appendix shall apply to that territory. It follows the usual procedure of paragraphs (1) and (2) above in the making of declarations and renewing them. Obviously the country in question must be one which is bound by the Paris Act (1971).
152 WIPO — Guide to the Berne Convention
Article I, paragraph (6) of the Appendix Limits to Reciprocity
(6)1 a) The fact that a country avails itself of any of the faculties referred to in paragraph (1) does not permit another country to give less protection to works of which the country of origin is the former country than it is obliged to grant under Articles 1 to 20.
lb) The right to apply reciprocal treatment provided for in Arti¬
cle 30(2) (7; ;, second sentence, shall not, until the date on which the period applicable under Article 1(3) expires, be exercised in respect of works the country of origin of which is a country which has made a declaration according to Article \(\)(a).
A.I.15. This provision, which forbids the application of reciprocity in the case of countries making use of the Appendix, is of some importance.
A Union country whose nationals find their rights curtailed by compulso¬
ry licensing systems in developing countries may nevertheless take no reprisals against works coming from the countries concerned. They must give them all the protection called for by Articles 1 to 20.
A.I.16. In other words, although a developing country may accord less, in matters of translation and reproduction, than appears in the Conven¬
tion proper, to the works of Union nationals, the countries from which these nationals come may not do the same.
A.I. 17. At the Paris Revision (1971) it was however agreed that this sub- paragraph did not modify the right of any country to apply the so-called
"comparison of terms" clause contained in Article 7(8).
A.I.18. Sub-paragraph (b) covers the case of a developing country which chooses, for translations, the "ten-year regime" (Additional Act of 1896). Other countries cannot apply reciprocity to its works. If however, on ceasing to be a developing country, it still wishes to make use of the ten-year regime (as is permitted by Article V(3) of the Appendix), the normal rules as to reciprocity apply.
Article II of the Appendix