Israel, Italy, Ivory Coast, Japan, Liechtenstein, Uru Stockholm Act (1967) (all Articles): Chad, German Democratic Republic, Mauritania, Pakistan, Romania, Senegal (6)**; Stockholm Act (1967), Articles 22 to 38: Australia, Austria, Belgium, Canada, Chad, Denmark, Fiji, Finland, German Democratic Republic, Germany (Federal Republic of), Ireland, Israel, Liechtenstein, Mauritania, Morocco, Pakistan, Romania, Senegal, Spain, Sweden, Switzerland, United Kingdom (22); Paris Act (1971) (all Articles): Australia, Austria, Barbados, Benin, Brazil, Bulgaria, Cameroon, Central African Republic, Chile, Congo, Costa Rica, Cyprus, Czechoslovakia, Denmark, Egypt, France, Gabon, German Democratic Republic, Germany (Federal Republic of), Greece, Guinea, Holy See, Hungary, India, Italy, Ivory Coast, Japan, Libya, Luxembourg, Mali, Mauritania, Mexico, Monaco, Netherlands, Niger, Portugal, Rwanda, Senegal, Spain, Suriname, Sweden, Togo, Tunisia, Upper Volta, Uruguay, Venezuela, Yugoslavia, Zaire (48); Paris Act (1971), Articles 22 to 38: Argentina, Bahamas, Iceland, Malta, Norway, Philippines, South Africa, Sri Lanka, Thailand, Zimbabwe (10); Denunciations During the hundred years of its existence, the Berne Convention has been denounced by five countries: Haiti (1887-1943), Montenegro (18931900), Liberia (1908-1930), Indonesia (1913-1960) and Syria (1924-1962). Burkina Faso (previously Upper Volta, name of the country before 1984), which had acceded to the Berne Convention (Brussels Act) in 1963, denounced the Convention with effect from 1970, but acceded once more to the Berne Convention (Paris Act) with effect from January 24, 1976. Estonia was a member from 1927 to 1940, and Latvia was a member from 1937 to 1940, when they became republics of the Soviet Union. Articles 1 to 21 and the Protocol Regarding Developing Countries of the Stockholm Act have not entered into force. The condition laid down in Article 28(2)(a) of that Act (a minimum of five ratifications or accessions by members of the Union) has not been met since two (Chad, Mauritania) of the six countries were not members of the Union at the time (1974). As of October 10, 1974, when Articles I to 21 of the Paris Act (1971) and its Annex entered into force, no further country may ratify or accede to the Stockholm Act. PART III THE HISTORY OF THE ADMINISTRATIVE CLAUSES OF THE BERNE CONVENTION AND OF THE INTERNATIONAL BUREAU OF THE BERNE UNION The Concept of a Union and the Organs of the Union First Occurrence in the Berne Convention. The expression "Union" was first used in the original (1886) text of the Berne Convention Article 1 of that text provided that "The contracting countries constitute a Union (sont constitués à l'état d'Union) for the protection of the rights of authors in their literary and artistic works." Later Developments. At the conference of revision of 1928 (Rome), the words "contracting countries" were replaced by the words "the countries to which this Convention applies." That wording has not been changed since, so that in the 1971 (Paris) Act also it reads as follows: "The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works" (Article 1). Meaning of "Union." The constitution of a "Union" means that a permanent link among countries is being created. The original (1886) text of the Berne Convention expressly indicated that it is the contracting countries that have created the Union. In the following parts of this article, the expressions "Union" and "Berne Union" will both be used. Organs of the Union. The first organ of the Berne Union mentioned in the Berne Convention was the "Bureau of the International Union for the Protection of Literary and Artistic Works" (Bureau de l'Union internationale pour la protection des œuvres littéraires et artistiques). It is mentioned in Article 16, first paragraph, of the original (1886) text of the Berne Convention. The same Article provides for three important features of the said Bureau, namely, that its attributions shall be fixed by common agreement by the countries of the Union, that it is placed under the "high authority of the highest government authority (Administration supérieure) of the Swiss Confederation," and that the cost (frais) of the Bureau shall be supported by the governments (Administrations) of all the member countries of the Union Conferences for revising the Berne Convention were also mentioned in the Berne Convention from the very beginning. The original (1886) text of the Berne Convention says that such conferences are conferences "between the delegates of the said [the contracting] States" (Article 17, first paragraph) and the task of such conferences is "to introduce in it [in the Convention] improvements to perfect the system of the Union" (Article 17. second paragraph). Those conferences, commonly called "conferences of revision," are sometimes considered as an organ of the Berne Union although they lack the permanence that characterizes a typical organ. The same is true in respect of the "Conferences of Representatives" instituted, in 1970, by the countries members of the Berne Union but not members of the Assembly of the said Union. Those conferences had and in respect of five member countries (see below) still have the task of dealing with certain questions, mainly the fixing of the maximum yearly amount of the expenses of the International Bureau of the Berne Union. On the other hand, there is no doubt that the Assembly of the Berne Union and the Executive Committee of the Berne Union are organs of that Union. They were established by the 1967 (Stockholm) Act (see Articles 22 and 23). The same Act replaced the International Bureau of the Berne Union by the International Bureau of the World Intellectual Property Organization (WIPO)--officially called the "International Bureau of Intellectual Property" (WIPO Convention, Article 2(ii))--and declared the latter to be the continuation of the united Bureaus of the Paris and Berne Unions (see Article 24(1)(a)) The Paris Union, it is recalled, is the Union founded in 1883 by the Paris Convention for the Protection of Industrial Property. The International Bureau of the Berne Union was headed by a director (directeur) The expression was used already in the original (1886) text of the Berne Convention (in the fifth paragraph of point 5 of the Final Protocol) Although there was no provision in the Berne Convention concerning the appointment of the Director, he was appointed, in fact, by the Swiss Government, namely the Federal Council (Conseil fédéral, the supreme authority of the executive branch), the power for doing so being regarded as inherent in the supervisory authority functions of the Swiss Government. Since the entry into force, in 1970. of the 1967 (Stockholm) Act, the International Bureau of WIPO has been headed by an official called in that Act "the Director General," appointed (elected) by the General Assembly of WIPO Such election requires a two-thirds majority also in the Assemblies of the Paris and Berne Unions (WIPO Convention, Article 6(3)(g)). First Occurrence in the Berne Convention and Present Membership. As already stated, the Assembly was created by the 1967 (Stockholm) Act of the Berne Convention and is first mentioned in that Act. References to articles are references to articles in the said Act and in the 1971 (Paris) Act. The Assembly consists of those countries of the Berne Union which are bound by the administrative clauses (Articles 22 to 27), and, naturally, also the final clauses (Articles 28 to 38), of the said Act or the 1971 (Paris) Act. The administrative clauses are the same in the 1967 (Stockholm) and 1971 (Paris) Acts. Out of the 76 members of the Union, there were 71 such countries on January 1, 1986, that is, at the beginning of the year of the centenary of the Berne Convention. They were the following: Argentina, Australia, Austria, Bahamas, Barbados, Belgium, Benin, Brazil, Bulgaria, Burkina Faso, Cameroon, Canada, Central African Republic, Chad, Chile, Congo, Costa Rica, Côte d'Ivoire, Cyprus, Czechoslovakia, Denmark, Egypt, Fiji, Finland, France, Gabon, German Democratic Republic, Germany (Federal Republic of), Greece, Guinea, Holy See, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Libya, Liechtenstein, Luxembourg, Mali, Malta, Mauritania, Mexico, Monaco, Morocco, Netherlands, Niger, Norway, Pakistan, Philippines, Portugal, Romania, Rwanda, Senegal, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Tunisia, United Kingdom, Uruguay, Venezuela, Yugoslavia, Zaire, Zimbabwe (71). The other five countries of the Union were not members of the Assembly on the said date (January 1, 1986). They are, however, members of the Conference of Representatives. Those five countries are Lebanon, Madagascar, New Zealand, Poland and Turkey. Representation and Voting. For each member country, what is represented is that country's "Government" (Article 22(1)(b)), and each country is represented by one "delegate" (Article 22(1)(b)). Each delegate may be assisted by one or more "alternate delegates," "advisors" and "experts." The designation given to such possible assistants of the delegates, and the number of such assistants, are decided by each government as far as its own delegation is concerned. With respect to matters which are of interest also to other Unions administered by WIPO, the Assembly must, before making a decision, hear the advice of the WIPO Coordination Committee (Article 22(2)(b)). One half of the countries members of the Assembly constitute a quorum (Article 22(3)). With two exceptions, all decisions of the Assembly require two thirds of the votes cast (Article 22(3)). One of the exceptions concerns Articles 23, 24 and 25, and paragraphs (1) and (3) of Article 26: those provisions can be amended only with a majority of three fourths of the votes cast (Article 22(2)); the other exception concerns Article 22 and paragraph (2) of Article 26: those provisions can be amended only with a majority of four fifths of the votes cast (Article 26(2)). Tasks. Article 22(2)(a) of the 1967 (Stockholm) and 1971 (Paris) Acts lists, in 13 points, the tasks of the Assembly. They are quoted hereafter, with a few comments in each case: "The Assembly shall: "(i) deal with all matters concerning the maintenance (maintien) and development of the Union and the implementation of this Convention." These are very broad terms, and almost everything that is specified in the subsequent twelve items may be regarded as falling also under this item. "Maintenance" includes, in any case, assuring that the organs of the Union exist and function. "Development" includes the entry of countries in the Union which are not yet members, and the Assembly consistently provides activities in the program of the Union for promoting knowledge of, and accessions to, the Convention. "Implementation" of the Convention certainly means the acts required from the member countries and the acts required from the various organs of the Union. Does dealing with matters concerning the implementation of the Convention mean that the Assembly may interpret the Convention? It is believed that it certainly means just that whenever the administrative and final provisions are concerned. It probably also means that the Assembly may deal with matters concerning the implementation of the Convention by any member country. for example, expressing an opinion on the question whether the measures necessary to ensure the application" (Article 36(1)) of the Convention by a given member country have been adopted by that country. So far, however, the Assembly was not asked to express an opinion in respect of a question of such a nature; consequently, it is not known whether the Assembly would, in fact, follow such an interpretation of the Convention. Non-governmental organizations specialized in the field of copyright suggest, from time to time, that the conformity of the national laws of member countries with the requirements of the Convention be examined and opinions thereupon be expressed by the Director General or the Assembly. There is nothing in the Convention that would enable the Director General to do so short of a direct and precise order by the Assembly under item (iii) ("give him all necessary instructions concerning matters within the competence of the Union" (sec below)). but the Assembly itself could, it would seem, express such opinions. However, as already stated, so far the matter has not been tested in the Assembly of the Berne Union. On the other hand, in the Assembly of the Paris Union (governed by provisions on the Assembly of the Paris Union which are the same as the provisions governing the Assembly of the Berne Union). the matter has been tested in 1985. For the first time in its history, the Assembly of the Paris Union expressed "a View concerning what "the correct interpretation" of one of the substantive provisions (on the right of priority) of the Paris Convention was (see 1985 Industrial Property 349). "(ii) give directions concerning the preparation for conferences of revision to the International Bureau ..... due account being taken of any comments made by those countries of the Union which are not bound by Articles 22 to 26." This provision found application for the first and, so far, only time, when, in 1970, the Assembly, in its first session, decided the convocation of a diplomatic conference for the revision of certain provisions of the 1967 (Stockholm) Act. The said conference was the conference of revision that took place in Paris in 1971; it adopted the 1971 (Paris) Act. "(iii) review and approve the reports and activities of the Director General ... concerning the Union, and give him all necessary instructions concerning matters within the competence of the Union." In preparation of each session of the Assembly, the Director General writes reports on his activities undertaken since the preceding session of the Assembly. The same reports deal also with other events of interest to the Union. "(iv) elect the members of the Executive Committee of the Assembly." More is said about this task of the Assembly in the part devoted to the Executive Committee, below. “(v) review and approve the reports and activities of its Executive Committee, and give instructions to such Committee." The activities of the Executive Committee are generally covered in the reports of the Director General mentioned in item (iii), above. The tasks of the Executive Committee are mentioned in the part devoted to it, below. "(vi) determine the program and adopt the biennial budget of the Union, and approve its final accounts. The 1967 (Stockholm) and 1971 (Paris) Acts provided, in this provision, for triennial budgets. The amendment of "triennial" to "biennial" was decided by the Assembly in its session held in 1979. In the same session, the Assembly also decided to apply the amendment immediately. that is, without waiting for its entry into force according to the provisions of Article 26(3). Those provisions require the notification of written acceptance by three fourths of the countries members of the Assembly at the time the amendment was adopted. That condition was fulfilled only on November 19, 1984, but, as already stated. the amendment was applied ever since its adoption (1979). A draft of the program and the budget of the Berne Union is prepared by the Director General in a document which also deals with the program and the budget of WIPO proper and the other Unions administered by WIPO The expenses of the Berne Union represented, in the decade starting in 1976, an average of 13 percent of the total expenditure of the International Bureau As far as the program is concerned, its main chapters deal with the promotion of accessions to the Berne Convention, with cooperation, for the development of developing countries, in the field of copyright and neighboring rights, with the collection and dissemination of information (publication of the monthly periodical Copyright, collection and publication of legislative texts), and with matters of topical interest. The budget allocates specific amounts for each of the corresponding activities that take different forms: meetings (usually with participants appointed by governments sitting together with participants appointed by interested non-governmental organizations), courses, seminars, individual training, study missions, surveys, publications, etc. The draft program and budget is first considered by the WIPO Budget Committee (a committee which presently has 14 States as members and whose members are elected by the WIPO Coordination Committee), and later by the Berne Union Executive Committee and the WIPO Coordination Committee, as well as by the Berne Union Assembly, which is sovereign in determining both the program and the budget of the Berne Union. More is said about those questions, particularly the development of the expenses and contributions, under "Finances of the Union," below. The final accounts of the Berne Union are established by the Director General, audited by external auditors and placed by the Director General before the Assembly for approval. "(vii) adopt the financial regulations of the Union." The financial regulations are not those of the Berne Union alone but are common to all Unions (and WIPO proper) administered by WIPO. From time to time, they are revised to respond to changing circumstances and when they are, the changes are, as far as the Berne Union is concerned, adopted also by the Assembly "(viii) establish such committees of experts and working groups as may be necessary for the work of the Union." Most of these are ad hoc they are established by virtue of appropriate provisions "(ix) determine which countries not members of the Union and which intergovernmental and international non-governmental organizations shall be admitted to its meetings as observers." For the 1985 session of the Assembly, the situation was as follows: five countries members of the Berne Union but not members of the Assembly of that Union (by virtue of Article 22(3)(g)), 39 countries members of WIPO not members of the Berne Union, 12 intergovernmental organizations and 49 international non-governmental organizations were invited to attend the meetings of the Assembly as observers. "(x) adopt amendments to Articles 22 to 26." This power has been made use of once so far, namely in 1979, when the Assembly decided to amend Article 22(2)(a)(vi) and (4)(a) and Article 23(6)(a)(ii) and (iii), so as to make biennial, instead of triennial, its ordinary sessions and the budget of the Berne Union. "(xi) take any other appropriate action designed to further the objectives of the Union." The objectives of the Union are not stated in any detail in the Convention but Article I says that the Union is one "for the protection of the rights of authors in their literary and artistic works." Examples of such action are given in the parts entitled "Copyright Law Subjects of Topical Interest" and "Development Cooperation in the Field of Copyright," below. "(xii) exercise such other functions as are appropriate under this Convention." Examples of such functions are the adoption of its own (the Assembly's) rules of procedure (Article 22(5)), the establishment of the details of the rules governing the election of the members of the Executive Committee (Article 23(5)(c)), the determination, in the case where a country is in arrears in the payment of its contributions, whether that country may nevertheless exercise its right to vote on the ground that the delay in payment is due to exceptional and unavoidable circumstances (Article 25(4)(e)), the fixing of the proportion and terms of payment for each country in respect of the working capital fund (Article 25(6)(c)) and the designation of the external auditors (Article 25(8)). "(xiii) subject to its [the Assembly's] accep tance, exercise such rights as are given to it in the Convention establishing the [World Intellectual Property Organization." The WIPO Convention gives certain rights to the Assembly of the Berne Union in connection with the appointment of the Director General of WIPO, the assuming by WIPO of the administration of certain international agreements, any transfer of the headquarters of WIPO outside Geneva, and any amendment of the WIPO Convention (WIPO Convention, Articles 6(3)(g) and 17(2)). Sessions. By January 1, 1986, that is, by the beginning of the year of the centenary of the Berne Convention, the Assembly has held seven sessions. All sessions were ordinary; they took place in 1970, 1973, 1976, 1979, 1981, 1983 and 1985, and they were all held in Geneva. The Conference of Representatives Establishment and Present Membership. When the administrative clauses of the 1967 (Stockholm) Act, and among them the clauses concerning the Assembly of the Berne Union, came into effect in 1970, not all countries members of the Berne Union had accepted those clauses and those which had not accepted them were not members of the Assembly. They, too, however, needed some organ in which they could, until they became members of the Assembly, make collective decisions. This is why, on September 28, 1970, the countries members of the Berne Union which, on that date. were not members of the Assembly of that Union "resolve[d] to establish a Conference of Representatives of the Berne Union." The members of this Conference of Representatives are countries that are members of the Berne Union without being members of the Assembly of that Union. Their number, at the time of the establishment of the Conference of Representatives (and when the Berne Union had 60 members), was 25. (The remaining 35 countries were members of the Assembly: 13 by virtue of their having accepted at least the administrative clauses of the 1967 (Stockholm) Act, and 22 by virtue of the "five-year privilege" provided for under Article 38(1)). Any country member of the Berne Union that accepts the administrative clauses of the 1967 (Stockholm) or 1971 (Paris) Act automatically ceases to be a member of the Conference of Representatives and becomes a member of the Assembly. Thus, the number of the countries members of the Conference of Representatives has gradually decreased At the beginning of 1986, the year of the centenary of the Berne Convention, this number was five. The five countries, still members of the Conference of Representatives at that date, were Lebanon, Madagascar, New Zealand, Poland and Turkey. Unless the Resolution of 1970 establishing the Conference of Representatives is revoked, the Conference of Representatives will have to be convened also in the future, as long as all of the said countries have not accepted at least the administrative clauses of the 1971 (Paris) Act. |