, , ,

I’m going to review an old bit of copyright law and try to make it sing. More, I’m going to try and convince you it is important, and even something in which it is worth your investing a little passion. Finally, I hope you will agree it might be worth reviving in some form or other.

What is it?

Let’s start with the Berne Convention, which is still the principal document setting out just what copyright is and what it covers – including any exceptions, exclusions and limitations…Berne was launched in 1886 and first “completed” in 1896, and has been revised several times since. Altogether 168 countries have signed it – including the USA, which finally inked its accession in 1988, after nearly a century of resistance.

The “old bit of copyright” that fascinates and depresses me is a forgotten right buried in a lowly Appendix. This Appendix was added to the Berne Convention in 1971 when it was last revised in Paris; the whole instrument is known as the Paris Revisions, or Paris Act.

Why it is fascinating and depressing?

The Appendix is fascinating, since it is the only text in the Act that specifically addresses the information needs of developing countries (reproduced in the Universal Copyright Convention).

And depressing, since – despite having been successfully enacted in the teeth of fierce opposition from publishers, and despite allowing developing countries the right to re-publish copyright materials whether the publishers allow it or not, under a compulsory license – it seems that little use has ever been made of it by any developing country.

And yet again, fascinating, because it provides an approach to defining information that is considered important – or even essential – to human development: “Ah yes, but who can say what is essential?” you might ask. Well the Paris Act provides a broad description that has survived the scrutiny of hordes of repudiating publishers and arrays of lawyers, many of them paid to be bite-your-ankle hostile. The definition must therefore be at least good enough (I will come back to the topic of essential information in a later blog).

And yet, it is depressing again because, as it stands, the text is limited to analogue material. The Appendix was somehow forgotten during the whole decade during which the Geneva-based World Intellectual Property Organization (WIPO) worked on producing a digital extension for the Berne Convention, as enshrined in the WIPO Copyright Treaty. No digital extension was ever produced for the Appendix.

And thus – finally – fascinating, because if it was revived now, it could serve as a vehicle for raising developing country concerns relating to essential information in the digital age. This is what could make it compelling today.

A bit more detail

In six short Articles, the Appendix sets out the conditions under which developing countries can issue compulsory licences to translate and republish “for the purpose of teaching, scholarship or research” anything that has been published abroad – whether the foreign publisher wants to allow it or not. “Anything” is specified as “natural and physical sciences, including mathematics, and …technology [and] fiction, poetry, drama and music, and … art books.”

As I mentioned earlier, the Appendix doesn’t cover anything digital. However, what it does cover is admirably broad: “print and analogous forms of reproduction… works which are composed mainly of illustrations [and thus arguably photographs and graphic/art works]…broadcasts… [and] sound or visual recordings of a translation… [and] audio-visual fixation”.

So the Appendix covers the translation and republishing/rebroadcasting of all subjects, in virtually all non-digital media, as long as the purpose is non-commercial and educational.

Sounds good, but there are many conditions and hoops for the developing country to jump through – starting with having to declare that it can’t “make provision for the protection of all the rights as provided for” in the Berne Convention, because of its “economic situation and its social or cultural needs”. Unique in the copyright world, this amounts to a declaration of incompetence. So it is not surprising that countries are reluctant to sign on.

But there are more unwelcome oddities in this short text. You can only apply for a compulsory license after you have tried to get a license from the rightsholder and you have been refused it, or if you can’t find the rightsholder. This is very onerous for a developing country translator – prohibitively so. The foreign rightsholder actually has to refuse permission for the translation before you can start. A hint of paradox there.

Then, while developing country publishers are not allowed to publish and sell commercial editions, they are nevertheless obliged to pay “just compensation” to the foreign rightsholders. The Appendix even helpfully considers possible foreign exchange problems in this regard. This too seems a contradiction in terms: you may be producing information materials which you intend to give away – and you have to pay a foreign rightsholder for the pleasure?

As a former translator, it tickled me to note that the Appendix calls for “national legislation to ensure a correct translation” – surely a first. Has any country ever introduced legislation to make bad translations illegal? I wish they had it in the UK, as I would be extremely litigious! Very unlikely that any developing country would waste intellectual steam and resources on cooking up such an absurd law.

Finally, the Appendix descends into gobbledygook. I accept it may be my intellectual laziness that prevents me from understanding the last Article. I won’t quote it, but the title gives a hint of its obscurity: “Possibilities of applying, or admitting the application of, certain provisions of the Appendix before becoming bound by it”. I spent a suffering hour unsuccessfully trying to digest the 161 words in the first clause. I think it allows you to set up a compulsory licensing scheme by dickering with the Convention itself, rather than using the Appendix. But wouldn’t swear to that. In any case, the wording is one final unnecessary hurdle for developing countries wishing to translate and publish information essential to their citizens’ development.

A conclusion

To date, only 16 of the 168 Convention signatory countries have also signed up for the Appendix, and I have been unable to trace any actual application of its provisions. So here we have an instrument used by almost no country to do almost nothing. If the publishers’ lobby wanted it to fail, they have succeeded admirably.

But here’s a what-if: What if we did for the Appendix what WIPO has already done for the rest of the Convention? Bring it up to date for the digital age. Add the internet, CD-ROM/DVD, the whole glorious excesses of technology. Subtract deliberate confusion. Clarify and make usable. Promote actively.

This should be easier than the initial struggle for the analogue version. It wouldn’t cost the rightsholders anything – the most they would lose is markets where they earn nothing anyway. Rightsholders have learned from such initiatives as HINARI – which provides developing countries with free access to electronic versions of journals – and which are based on precisely this concept. Making copies of existing electronic versions costs publishers nothing, apart from a very small administrative overhead, while the enhancement of their public image, rosy feelings of self-worth, and (joking apart) future sales when the countries shed their “developing” tag – makes it all worthwhile.

An international copyright expert I discussed this with pointed out that you can’t just change the Appendix, you have to reopen discussion on the whole Berne Convention. And nobody wants to do that, neither publishers nor the developing countries.  Trying to tilt at that particular windmill, he said, would indeed be quixotic.

Well, it may be quixotic, Sancho Panza, but it is a key part of the discussion of an access right to information, which we will be exploring further in this blog. If the right of access to information essential for human development in the digital age cannot be discussed in the context of updating the Appendix to the Berne Convention, or as a component of an expanded WIPO Copyright Treaty, then how can it be tackled?

Because this is certainly a gap in our acknowledged human rights.

What do you think?