(1) Countries of the Union which have not ratified or acceded to this Act and which are not bound by Articles 22 to 26 of the Stock¬
holm Act of this Convention may, until April 26, 1975, exercise, if they so desire, the rights provided under the said Articles as if they were bound by them. Any country desiring to exercise such rights shall give written notification to this effect to the Director General ; this notification shall be effective on the date of its receipt. Such countries shall be deemed to be members of the Assembly until the said date.
(2) As long as all the countries of the Union have not become Members of the Organization, the International Bureau of the Or¬
ganization shall also function as the Bureau of the Union, and the Director General as the Director of the said Bureau.
(3) Once all the countries of the Union have become Members of the Organiza'ion, the rights, obligations, and property, of the Bureau of the Union shall devolve on the International Bureau of the Organ¬
ization.
38.1. These provisions, which first appeared in the Stockholm Act (1967) were reviewed in Paris (1971) to take account of events which had hap¬
pened in the meantime (the first Director General of WIPO taking office and the entry into force of the WIPO Convention on April 26, 1970).
38.2. Paragraph (1) deals with what was known as "the five-year privi¬
lege". Since the deadline date is now passed, this is only of historic interest. It allowed a Union country, not yet bound by the new adminis¬
trative provisions which emerged from Stockholm, to act as though it had accepted them e.g., to vote in the Assembly or serve on the Executive Committee. A few countries took advantage of this possibility during the period during which it was open.
38.3. Paragraph (2) covers the interim role of the Secretariat. While there remain Union countries which have not yet joined WIPO, the individuals who serve on the Secretariat have a double legal capacity, first as the International Bureau of WIPO and second as the old Bureau of the Berne Union. This period is now approaching its end as more Union countries join WIPO. The WIPO Convention also contains transitional measures of this sort (Article 21). These complete the picture of the administrative mechanism.
38.4. The third paragraph looks to the final demise of the old Bureau of the Union, established in 1886. When, at the end of the transitional period, it ceases to exist, its rights, obligations and property devolve on the International Bureau of WIPO.
146 WIPO — Guide to the Berne Convention
APPENDIX
[Special Provisions for Developing Countries]
A.l. This Appendix reflects the main work of the Diplomatic Confer¬
ence in Paris in 1971. Its purpose is to allow certain Union countries, under the conditions specified therein, more latitude as regards the rights of translation and of reproduction than is normally permitted by the Convention proper. As has been seen, this Appendix is an integral part of the Convention (Article 21 above). It contains six Articles numbered in Roman numerals in order to avoid confusion with the Articles of the Convention proper.
A.2. The idea of including in the Convention a special regime in favour of young countries which had recently achieved independence was first put forward at an African Copyright Meeting in Brazzaville in 1963. It was pursued during the preparatory work for the Stockholm Revision.
After prolonged discussion during these preparations and at the Stock¬
holm Conference itself, there was added to the Convention a "protocol regarding developing countries" as an integral part of it. It was known as the Stockholm Protocol.
A.3. However, it soon became clear that the solution it proposed was unlikely to gain much acceptance among Union countries, particularly those whose works were likely to be made use of under the provisions of the Protocol. If the needs of the developing countries were to be met without too much delay, it seemed necessary to take a second look at the conditions under which translation and reproduction of the works of other countries might be made for purposes of education and scientific research.
A.4. It was for this purpose that the Paris Conference was convened. Its work was confined to provisions of interest to developing countries.
These countries had earlier demanded that the Convention should offer them the same latitude as it was proposed to offer in another international instrument (see the Washington Recommendation and Article 28(2) as to the coming into force of the Paris Act).
A.5. The Appendix therefore augments the Convention's existing excep¬
tions to the author's exclusive rights (e.g., Articles 26/5, 10(2), IO6/5 and, as regards translations, the ten-year regime—see Article 30). It replaces the Stockholm Protocol which no longer applies (Article 34(2)).
A.6. Under the system laid down in the Appendix, a developing country which wishes to do so. may provide for a regime of non-exclusive, non- assignable compulsory licences carrying an obligation to make fair pay¬
ment to the copyright owner, to translate and/or reproduce works protect¬
ed by the Convention, exclusively for systematic instructional activities (or in some cases for teaching, scholarship or research).
A.7. The rules as to compulsory licences follow the usual pattern. The copyright owner enjoys a period in which to exercise his exclusive rights. .
If he does so, no compulsory licence can be granted in the country in which he has exercised it for the use in question. If a licence is granted, it covers only the country in question and export of copies made under it is forbidden. Power to continue making copies under the licence ceases if and when equivalent copies are put on the market in that country by the copyright owner, though the compulsory licensees' stock-in-trade may be disposed of. The payment to be made by the compulsory licensee must be consistent with standards of royalties normally operating on licences free¬
ly negotiated between persons in the two countries concerned and must be transmissible to the copyright owner, if necessary using "international machinery".
A.8. These are the broad lines of the scheme. The details follow.
148 WIPO — Guide to the Berne Convention
Article I of the Appendix