The Netherlands non-voluntary licenses for reprography

by James Packard Love

This from the joint IFRRO WIPO Publication on Collective Management in Reprography, written by Tarja Koskinen-Olsson, April 2005. It describes non-voluntary licenses to make copies of works in the Netherlands.

Educational institutions, libraries, government agencies and other institutions working in the public interest have been able to issue photocopies for internal use to students, mutual lending between libraries and to civil servants respectively, provided that fair compensation is paid to the national RRO, Stichting REPRORECHT. The reproduction right fee is set by statute. An amendment of the Dutch Copyright Act of 1912, accepted in March 2002, extended the effect of the legal licence. After a legislative process lasting some years, it now covers the public sector and the business sector.

It would be interesting (and important) to estimate the rates for such licenses that would be appropriate for developing countries.

Australia's Crown use of copyright law

by James Packard Love

Australia has a special provision in its copyright law for crown use.

Division 2--Use of copyright material for the Crown
182B. Definitions
182C. Relevant collecting society
183. Use of copyright material for the services of the Crown
183A. Special arrangements for copying for services of government
183B. Payment and recovery of equitable remuneration payable for government copies
183C. Powers of collecting society to carry out sampling
183D. Annual report and accounts of collecting society
183E. Alteration of rules of collecting society

The ITT Promedia/Begacom excessive pricing case

by James Packard Love

This 1998 Competition Policy Newsletter describes the TT Promedia/Begacom excessive pricing case as follows:

Upon a complaint by ITT Promedia, the Belgian directory-publishing subsidiary of the US ITT World Directories company, the Commission investigated into Belgacom’s prices for access to subscriber data for the publication of telephone directories. The complainant alleged that the prices charged by the Belgian incumbent telecommunications operator were excessive and discriminatory in the sense of Article 86 EC-Treaty. The Commission carried out an assessment of the prices charged, with the support of an expert auditing firm, and insisted in fully implementing the cost-orientation principle. After the Commission had sent out a formal statement of objections at the end of 1995, Belgacom finally agreed, in a settlement with the Commission, to a substantial reduction (by more than 90%) of these prices by dropping any variable component in relation to the turnover or profit of directory publishers. Following the complainant withdrawing its complaint, this procedure was terminated by the Commission in April 1997 (cf. Press Release IP/97/292 of 11.4.1997).

Georgia on fair use and excessive pricing

by James Packard Love

This is an interesting opinion.

Department of Law, State of Georgia, UNOFFICIAL OPINION. The Scope of the Fair Use Doctrine, 17 USC §107, for making copies for classroom use, for teachers who make copies for research and scholarship, and the potential liability of teachers, librarians and employees of non-profit institutions for exceeding the parameters of fair use. (February 14, 1996), Michael J. Bowers, Attorney General. .

. . . Such factors include whether or not the work is available. The work may be unavailable, for example, because it is out of print or because of excessive price. Under 17 U.S.C. § 108, Limitation on exclusive rights: Reproduction by libraries and archives, the rights of reproduction apply to the entire work if it is determined "on the basis of reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price . . . ." 17 U.S.C. § 108(e) (emphasis added)." . . ..

See also Limitations on exclusive rights: Reproduction by libraries and archives, 17 USC § 108 (c), which also refers to a "fair price."

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if—

(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and

(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

Philippines Presidential Decree 1203, from 1977

by James Packard Love

This is the controverisal Philippines Presidential Decree 1203, from 1997. In a 2004 submission to USTR, IIPA said:

"Another problem is that pirates continue to claim they are exempt under an ancient compulsory license (Presidential Decree No. 1203) which was repealed in 1997! The Philippine government must stop permitting pirates to claim this exemption by issuing a directive indicating that P.D. 1203 may no longer be invoked and instructing authorities to take raids against pirate booksellers and printers."

Here is is:

PRESIDENTIAL DECREE No. 1203 September 27, 1977

---

MALACAÑANG
M a n i l a

PRESIDENTIAL DECREE No. 1203

FURTHER AMENDING PRESIDENTIAL DECREE NO. 285 AS AMENDED BY PRESIDENTIAL DECREE NO. 400

WHEREAS, Presidential Decree No. 285 as amended, authorizes the compulsory licensing or reprinting of educational, scientific or cultural books and materials as a temporary or emergency measure whenever the prices thereof become so exorbitant as to be detrimental to the national interest; and

WHEREAS, there is a necessity to provide effective controls or safeguards against any abuses of the rights of foreign or domestic authors and publishers and so as not to deprive them of the returns of their works or investments;

NOW, THEREFORE, I, FERDINAND E, MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and decree:

Section 1. Section 1 of Presidential Decree No. 285 as amended by Presidential Decree No. 400 is hereby further amended to read as follows:

"Sec. 1. (1) Whenever the price of any textbook or reference book duly prescribed by the curriculum and certified by the registrar of the school or university or college, whether of domestic or foreign origin, has become so exorbitant as to be detrimental to the national interest, as determined and declared by a Reprint Committee composed of the Secretary of Education and Culture as Chairman, and the Director General of the National Economic Development Authority, the Chairman of the Textbook Board and of the Director of the National Library as members, such book or other written material may be reprinted by the government or by a printer under the following conditions:

"(a) That a particular title may be reprinted by only one private publisher or printer authorized by the Reprint Committee;

"(b) That anyone wishing to undertake the reprinting shall file an application with the National Library containing the following information: the title, author and original publisher of the book or other written material to be reprinted; its foreign list price in case of a Philippine book; the proposed list price of the reprinted matter; the name of the actual printer; the number of copies to be reprinted; and the name and address of the applicant. An application for each subsequent reprinting shall likewise be filed and copies thereof furnished to local representatives of the foreign publishers;

"(c) That the successful applicant shall accomplish the reprinting within sixty days from the date of approval of the application. If the reprinting shall not have been done in that time, the title may be applied for by other interested parties.

"(2) Exorbitant price shall mean not less than Thirty-Five Pesos (P35.00), until otherwise increased by the Reprint Committee.

"(3) Each copy of each title reprinted under this Decree shall be numbered consecutively on the copyright page.

"(4) All titles reprinted prior to these amendments shall be registered, the registrant furnishing the National Library the same information required in the aforementioned application, within thirty (30) days after these amendments take effect."

Section 2. Section 2 of the same Decree is hereby amended to read as follows:

"Sec. 2. Reprinted books as defined in Section 1 shall bear proper acknowledgment of the source, authorship, copyright proprietors and past printers, if known, as well as the names and addresses of the publishers and printers. If abbreviated or edited in any manner, such fact shall be stated. The following inscription shall also appear on the covers thereof: "Export of this Book or material is punishable by law." The export of such reprints under any circumstance is hereby prohibited. Any reprinter found guilty of exporting reprinted books in violation of this provision shall in addition to the penalties prescribed in Section 5 hereof, be disqualified from further reprinting, and his license as trader, if any, immediately canceled.

Section 3. Section 3 of the same Decree, as amended, is hereby further amended to read as follows:

"Sec. 3. The reprinting of the above-mentioned books shall be subject to the condition that the awardee shall pay a royalty of at least seven per centum (7%) of the list price in the Philippines in case of books published in the country, or at least two per centum (2%) of the foreign list price in the case of books published in other countries. Report of sales and payment of royalties shall be made to the copyright owners or publishers every six (6) months, Provided, That in the case of non-resident authors, publishers or copyright owners, the royalties, in dollars if so desired, shall be fully remittable, within the same period."

Section 4. Section 4 of the same Decree as amended is hereby further amended to read as follows:

"Sec. 4. (1) Any conflict or claim arising out of the provisions of this Decree shall be decided by the Committee mentioned in Section 1 hereof. An order or decision of said Committee shall become final after fifteen (15) days following the receipt by the party concerned of such order or decision, unless in the meantime an appeal therefrom to the Office of the President has been taken by the aggrieved party.

"(2) The Reprint Committee shall adopt and promulgate such rules and regulations as may be necessary for the effective implementation of this Decree."

Section 5. Section 4 of the same Decree is hereby renumbered section 5 and amended to read as follows:

"Sec. 5. Any person, natural or juridical, who shall violate the provisions of this Decree or its implementing rules shall, upon conviction thereof, be punished by imprisonment of not less than six (6) months nor more than three (3) years or a fine of not less than Ten Thousand Pesos nor more than Fifty Thousand Pesos, or both at the discretion of the court. If the violation is committed by a firm, company or corporation, the directors or the manger or person in charge of the management of the business thereof shall be responsible therefor, in any case the corporation shall also pay the fine herein provided. Books and materials printed or published or exported in violation of this Decree shall be immediately confiscated and the establishment that printed or published or exported them shall forthwith be closed and its operation discontinued."

Section 6. These amendments shall take effect immediately.

DONE in the City of Manila, this 27th day of September, in the year of Our Lord, nineteen hundred and seventy-seven.

IIPA's report on Vietnam compulsory licenses

by James Packard Love

This is from the International Intellectual Property Alliance (IIPA)'s February 13, 2006 recommendations for the 301 Watch List, on Vietnam.

"Restrictions on IP Rights: Article 7(2) gives the State unchecked power to decide when a right holder may exercise rights and under what circumstances, without taking into account the balance already created through exceptions to protection, e.g., in Article 25. Leaving Article 7(2) intact would create inconsistencies with the Berne Convention, the TRIPS Agreement and the WIPO Treaties, and should pose a major obstacle to Vietnam’s accession to the WTO. The second half of Article 7(3) violates Vietnam’s current and future obligations by permitting the State to restrict the ability of a right holder to exercise lawful rights, and worse yet, could result in an open-ended compulsory licensing to use copyright materials seemingly without limitation or reason. The provision should be deleted. The first clause of Article 8 would also run afoul of Vietnam’s bilateral commitments and would be Berne and TRIPS-incompatible since it establishes impermissible content-based restrictions of protection under copyright. That clause must be deleted.[8]
. . .
"Impermissible Compulsory Licenses: Article 26 enacts into law in Vietnam a broad broadcasters’ compulsory license as to all works except cinematographic works (excluded by the terms of Article 26(3)).[10] Notwithstanding the attempt in Article 26(2) to limit the scope of the compulsory license to the three step test, it is hard to see how the compulsory license in clause 1 would not collide with the three step test in virtually all instances. If this provision applied to performers only, it might be acceptable, but as drafted, it creates a Berne- and TRIPS-incompatible compulsory remuneration scheme. Similarly, the Article 33 compulsory license (which is a last minute addition to this legislation) for use of sound recordings and video recording for commercial “broadcasting” is in violation of international standards; 33(1)(b) allows “[u]sing a published sound/video recording in … business and commercial activities.” Again, the Vietnamese attempt to limit the scope of these compulsory license provisions with the Berne three part test language (Article 33(2)) fails, because this compulsory license, by its very nature, conflicts with a normal exploitation of the sound and video recordings, and unreasonably prejudices the legitimate interests of the right holders involved.

"[8]We note that a new Article 24 was added just prior to passage of the Law, and it is unclear what its scope may be. It provides, “[t]he protection of the copyright to literary, artistic and scientific works referred to in Article 14.1 of this Law shall be specified by the Government.” Article 14.1 enumerates the various subject matter of copyright (not including related rights). This provision could be innocuous; however, to the extent it coincides with Articles 7 and 8 to deny rights to authors or right holders or cede rights, it could be problematic.
. . .
[10] The Article reads as follows:

Use of published works without obtaining permission but paying royalties, remuneration

1. Broadcasting organizations using published works for the purpose of carrying out broadcasting programs with sponsorship, advertisements or collection of money in any form shall not be liable for obtaining permission from, but shall be liable to pay royalties or remunerations to, the copyright owner in accordance with the Government regulations,
2. Organizations and individuals when using the works stipulated in paragraph 1 of this Article must not influence the normal exploitation of works and must not prejudice rights of authors or copyright owners, and must provide
3. information about the name of the author and origin of the works.
4. The use of works referred to in clause 1 of this Article shall not apply to cinematographic works.

IIPA on Pakistan compulsory licenses

by James Packard Love

This is from the International Intellectual Property Alliance (IIPA)'s February 13, 2006 recommendations for the 301 Watch List, on Pakistan's compulsory licensing laws.

"Fix Royalty-Free Book Compulsory License Which Violates TRIPS: The Government of Pakistan amended its copyright ordinance in 2000 to include Section 36(3) that allows a royalty-free compulsory license of books. This amendment was passed without any opportunity for publishers to comment. This provision threatens to further diminish a market already almost completely overrun by piracy. This royalty-free compulsory license violates the Berne Convention and TRIPS and the Government of Pakistan must repeal it.

"Royalty-Free Compulsory License for Books Is Out of Step with International Standards: The Government of Pakistan amended its copyright ordinance in 2000 to include a provision (Section 36(3)) that allows a royalty-free compulsory license of books. Specifically, it provides, “[t]he Federal Government or the Board may, upon an application by any government or statutory institution, in the public interest, grant a licence to reprint, translate, adapt or publish any textbook on non-profit basis.” Included in “government or statutory institution” is the National Book Foundation (NBF), which is part of the Ministry of Education and has been previously accused of engaging in unauthorized reproduction. This amendment was passed without any opportunity for comment from publishers and threatens to further diminish a market already almost completely overrun by piracy. This royalty-free compulsory license violates the Berne Convention and TRIPS[10] and Pakistan must delete it.

[10] The Government could limit the scope of the license by making clear that the conditions of the limiting language of Article 36(1) must be met in order for a license to be available under Article 36(3). Even then, however, the license cannot withstand scrutiny when compared with the Berne Convention’s three-part test. Pakistan has not availed itself of the Berne Appendix. Thus, Article 36(3), completely out of the bounds of Pakistan’s international obligations. It also may run afoul of private property rights enumerated in the Constitution of Pakistan and should be considered in light of this constitutional requirement as well.

IIPA's 301 recommendations for Egypt addressed compulsory licensing issues

by James Packard Love

The International Intellectual Property Alliance (IIPA) February 13, 2006 301 recommendations contained these comments about Egypt:

"Repeal Provision Requiring Translation Into Arabic. Section 148 of the Code requires translation of all literary works into Arabic within three years of publication; if not, they are deemed to fall into the public domain. This is an extremely disturbing development. This unprecedented provision violates Egypt’s international obligations, is highly prejudicial to all right holders, including U.S. publishers, and it must be deleted.

"Repeal Overly Broad Compulsory License. Article 170 of the Code contains a compulsory license for copying and translating works. It is not limited to literary works in printed form, and apparently extends to computer programs and audiovisual works. Such a compulsory license is completely contrary to international law and would be devastating to the copyright industries if the Egyptian government allows for such practices. It must be fixed by implementing regulations, or deleted altogether.9 The Implementing Decree (Articles 4 and 5) fails to resolve this issue and leaves in place a Berne- and TRIPS-incompatible compulsory license.

"Delete Compulsory License Provision for Broadcasts. Article 169 permits broadcasting organizations to use works without seeking authorization. This amounts to a compulsory license and should be deleted.

Project on compulsory licensing in developing countries

by James Packard Love

We are thinking that it will be useful to have a campaign looking at compulsory licensing of copyrighted works in developing countries. Among issues that might be examined are the following:

1. What situations or problems might be addressed with compulsory licenses?
   
2. How useful is the Appendix to the Berne in addressing these problems?
   
3. What are the (other) options for state practice in developing countries?

In terms of campaign type projects, one idea is to organize a common day when many people/collaborating groups would apply for compulsory licenses, in different countries. In doing something like this, there could be coordination among collaborators for publicity, as well as in choosing the target works, analysing the grounds for the licenses, and fashioning remedies.

Another campaign idea worth mentioning is to develop a theory of compulsory licenses for resource poor communities, that would legalize non-voluntary copying of works, in return for reasonable (for that community) remuneration.

US compulsory licensing under 28 USC 1498. Patent and copyright cases

by James Packard Love

Any employee of the United States government, or any "contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government," can use any copyright under 28 USC 1498. The copyright owner cannot enjoin these persons from using the copyrighted works. They can only ask for compensation. This is the relevant section:

(b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations.

Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date.


(c) The provisions of this section shall not apply to any claim arising in a foreign country.

In the US...

by Manon Ress

Info from Copyright office
US compulsory and statutory licenses in the Copyright Act (title 17 of the United States Code).

• Statutory license for secondary transmissions by cable systems (section 111)
• Statutory license for making ephemeral recordings (section 112)
• Statutory license for the public performance of sound recordings by means of a digital audio transmission (section 114)
• Compulsory license for making and distributing phonorecords (section 115)
• Compulsory license for the use of certain works in connection with non-commercial broadcasting (section 118) (Manon: for education)
• Statutory license for secondary transmissions by satellite carriers for private home viewing (section 119)
• Statutory license for secondary transmissions by satellite carriers for local retransmissions (section 122)
• Statutory obligation for distribution of digital audio recording devices and media (chapter 10)

A division of the US Copyright office collects royalty fees from cable operators for retransmitting television and radio broadcasts (section 111), from satellite carriers for retrans-mitting “superstation” and network signals (section 119), and from importers or manufacturers for distributing digital audio recording products.

The Division deducts its full operating costs from the royalty fees and invests the balance in interest-bearing securities with the U.S. Treasury for later distribution to copyright owners by Copyright Royalty Judges.

A “Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords” (section 115) is recorded by the Division when the licensee cannot identify the copyright owner through a search of Copyright Office records. The Licensing Division also records voluntary license agreements between copyright owners of sound recordings and digital subscription services, or eligible digital non-subscription services (section 114); copyright owners of sound recordings and those entities making ephemeral recordings (section 112); copyright owners of nondramatic musical works and those
intending to digitally distribute phonorecords (section 115); copyright owners and public broadcasting entities (section 118); and copyright owners of broadcast programming and satellite carriers and ⁄ or distributors (section 119). Royalty payments are not made to the Copyright Offi ce under any of these licenses.

Blog on compulsory licensing of copyright

by James Packard Love

This is a blog to discuss the use of compulsory licensing for copyrighted works.