Charles F. Johnson's Timeline of the Origins of the 1967 Stockholm Protocol for developing countries

(This timeline is part of a larger project at KEI regarding an evaluation of the 1971 Appendix to the Berne Convention on "SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES.)

In 1970, Charles F. Johnson wrote "The Origins of the Stockholm Protocol, 18 Bull. Cr. Soc. U.S. 91 (1970-71), 49. (hereinafter, The Origins). The 90 page journal article provided a detailed history of the events leading up the negotiations in 1967 for a new protocol on access to copyrighted works for developing countries. The following timeline is based upon the description of events in Johnson's article, beginning in 1959, and ending right before the 1967 diplomatic conference in Stockholm.

This period 1959 to 1967 was an important moment in terms of the development of norms and institutions regarding intellectual property. For example, in 1960, the Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (BIRPI) moved from Berne to Geneva, and was reorganized as the World Intellectual Property Organization (WIPO) in 1967. The negotiations over the Stockholm protocol were certainly part of the motivation for the transformation of BIRPI into WIPO, and later into a specialized UN agency for intellectual property. The Rome Convention and the International Convention For The Protection Of New Varieties Of Plants were both concluded in 1961. The International Covenant on Economic, Social and Cultural Rights was adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. (See Timeline of privileges regarding the commercialization and use of knowledge. Part 1: before 1980)

During the period covered by this timeline, developing countries, and in particular the recently independent countries (more than 100 become independent from 1943 to 1980, including 44 in the 1960s), considered a number of proposals to modify global copyright norms, to address their own concerns over access and development. There was the possibility of amendments or new protocols to the Universal Copyright Convention (UCC), for which UNESCO provided the secretariat, or the Berne Convention, for which BIRPI/WIPO provided the secretariat, or a new regional or developing country only treaty, outside of either the Berne or the UCC.

The 1967 Stockholm protocol (copy of text here) is today a largely forgotten instrument. At the time, it was bitterly opposed by European Publishers. KEI will in separate research notes discuss the contents of the 1967 protocol, and the events leading up to and the substance of and experience with the 1971 revisions to the Berne Convention, including in particular the flawed Appendix to the Berne for Special Provisions for Developing Countries.

Timeline of Events Leading Up To the Stockholm Protocol

1959. U.S. representatives at the Intergovernmental Copyright Committee (IGC) 4th session in Munich proposed that the Committee include a new agenda item entitled “Assistance to and Consultation with States, not yet Parties to the Universal Copyright Convention and/or Berne Convention.” The Committee decided to recommend to the Director-General of UNESCO that the Participation Regime be extended to include the field of copyright.

1960 October 31 to November 4. At the IGC’s 5th session in London, its agenda included, again, the item “Assistance to States with Regard to Copyright Legislation.” The Committee learned that proposals to provide assistance to the developing states had been included in the Director-General’s planned presentation for the forthcoming UNESCO General Conference on this topic, but the U.S. pointed out that, “in light of the recent independent status of a number of African states and their need to establish viable copyright systems, the proposals should be expanded to take particular account of Africa’s problems.”[1] Resolution No. 39 V is adopted to bolster the Committee’s recommendation that the Director-General’s proposals be so widened.

1960 November 14. At the 11th UNESCO General Conference in Paris, a working group convenes “to discuss the cultural activities of tropical Africa.”[2] A delegate from Brazzaville (Congo) comments: “Legislation derived from that of European countries does not cater to the problems of Africa. African states are not in a position to become parties immediately to the new Universal Copyright Convention, and therefore simplified copyright legislation must be devised for our countries. Doubtless, the ensuing protection would provide a creative stimulus to our creative artists.” The Congo delegate submits two draft resolutions (11C/DR/156 and 11C/DR/160), noting “the importance of cultural developments in Africa and the need to create a viable copyright system,” and inviting UNESCO to convene a conference on copyright on the African Continent.[3] The General Conference adopts resolution 4.32(b) authorizing the Director-General to “participate, at the request of Member States, in their activities concerning the international and national protection of copyright.” Also at the 11th UNESCO Conference, India drafts a resolution pertaining to their need for inexpensive production of scientific and technical books, resulting in the adoption of resolution 2.43 authorizing the Director-General to “help in formulation of suitable programmes for cheap production of scientific and technical books in the underdeveloped countries, on a national and regional basis,” though few if any steps are taken towards this goal.

1961 September 25-30. The 6th IGC session and 10th Berne Permanent Committee session were held concurrently in Madrid, and, at a joint session of the two groups, the Berne Permanent Committee expressed interest in the matter of UNESCO’s participation in the activities of Member States in the field of copyright. The two committees were briefed by the Secretary of the UNESCO Copyright Division on the progress UNESCO had made in preparing for a proposed African Copyright Seminar. The joint committees adopted a resolution, proposed by the U.S., inviting the two committees to designate consultants to assist their respective Secretariats in the preparation for working papers for such seminars.

1962 December. At the 12th session of the UNESCO General Conference resolution 4.32(a) was adopted, authorizing the Director-General to maintain services necessary for the implementation of the U.C.C. by “assisting Member States to develop national Copyright legislation by such means as for the African continent, the convening in collaboration with the International Union for the Protection of Literary and Artistic Works (Berne Union) of a study meeting on copyright and the granting of fellowships to officials of African States […].” This was “merely a pro forma action providing the specific authority and finding to convene the meeting.”[4]

1963 August 5-10. An African Study Meeting, organized by BIRPI and UNESCO, was convened in Brazzaville (Congo) “to assist the African Member States and Associate Members of UNESCO in defining the general principles applicable to the protection of authors in their respective territories.” Twenty-three African countries sent representatives; three non-African states and six NGOs also attended as observers. The drafting committee, appointed to prepare the Conference’s final recommendations and resolutions, “expressed the view that the major copyright conventions needed to be reexamined in light of the specific needs of the African continent,” and that “African experts should be included as full members at all international copyright meetings, especially the committees which were then preparing for the revision of the Berne Convention.” [5]

1963 November 18-23. A Committee of International Experts met in Geneva to discuss revisions of the Berne Convention in accordance with Resolution No. 8 of the Berne Union Permanent Committee. The delegate from Tunisia stressed that “the Berne Union must not fail to consider the necessity for eventually widening its Convention to take account of the special needs of the developing countries.”[6] The European Broadcasting Union (EBU), “one of the world’s largest ‘user’ organizations” with “a wide membership in developing countries,” devoted an entire section of its observations to the “Special Problems of the Developing Countries.”[7] Its proposals are seen as a forerunner to a proposed Article 25bis.

1963 December 2-7. The 11th session of the Berne Permanent Committee and the 7th session of the Intergovernmental Copyright Committee of the U.C.C. are both held in New Delhi. According to Johnson, this was the first time the two committees met jointly in an Asian country. India's Ministry of Education Mr. Chagal proposed a study of introducing into the conventions compulsory licenses to publish copyrighted materials for education purposes. Resolutions No. 8 and 51 (VII), proposed by India, are adopted by both, inviting the Secretariats to study and report on the possibilities of introducing copyright compulsory licensing for educational purposes, and of introducing translation provisions into the Berne Convention. Resolutions No. 7 and 50 (VII) are adopted, “not[ing] the success of the Brazzaville meeting and [expressing hope] that the African States would be able to adopt legislation suitable to their needs and allowing them to adhere to the international conventions.”[8]

1964 July. The BIRPI Study Group’s Second Report was released, updating its 1963 report. It proposed “an entirely new article into the Convention – Article 25bis – designed especially to fit the needs of the developing countries. It also proposed the “enlargement of the protection granted authors by the creation of new rights which are already recognized” but stressed that it was “necessary to promote the general development of copyright by reforms intended to make the rules relating to it more simply to apply, as well as to adapt them to the social, technical, and economic conditions of the contemporary community.”[9] It “observed that care should be taken to avoid the unreasonable creation of obstacles that might impede access to the Union of countries at present outside it,” suggesting that “such countries should be provided with the opportunity to make specific reservations regarding the right of translation, right of radiodiffusion, right to use works for educational or scholastic purposes, and possibility of making specific arrangements among themselves in derogation of the convention” (p 120-21). Though African nations had discussed special rules for folklore, the Study Group believed that “the best way to protect this subject matter was for the developing countries to adopt their own national legislation.”[10]

1964. In 1962 the Director of BIRPI and the Swedish administration had set up a committee called the Author’s Consultative Committee (CCA). In its 1964 comments on Article 25bis, the CCA warned of “the risks of degeneration which it is capable of importing into the Convention.” It recommended the provisions not be in the form of an Article, but rather established in a Protocol, and that the they be open only to a limited group of countries and confined to specific provisions; namely, those concerning translations, broadcasting, duration of protection, and conditions governing the exercise of reproduction intended exclusively for educational establishments.

1964 November 30 to December 4. Under the joint auspices of BIRPI and UNESCO, a Committee of African Experts met in Geneva to draft a model copyright law exclusively for African countries. The draft law included exclusive translations rights for the author, adopted an employer-for-hire principle, protected works inspired by folklore, included fair use exceptions, especially when used for private educational or scientific purposes, included flexible broadcasting rights including a limited compulsory license, and had a term of protection of only life plus 30.[11] The Committee also recommended the adoption of a regional African convention, and urged African nations seek a reduction in minimum terms of protection, “provide a means of adjusting the clause on special arrangements to take better account of the realities of the African continent,” and request revisions enabling IGC membership for additional countries.

1965 July 5-14. BIRPI Committee of Experts convened in Geneva “to express the views of their respective governments on the proposals for revision of the Berne Convention.”[12] A “number of countries spoke favorably about the principle or theory underlying the stated reservations” contained in Article 25bis.[13] France preferred the drafting of a separate protocol, desiring not to inadvertently or indirectly set up a system of inferior protection as compared to the Universal Convention. Developing countries (led by Congo, Senegal and Tunisia) stressed that the Convention should establish mechanisms to meet the needs of developing countries. A “joint proposal,” drafted by representatives of six delegations (Congo, India, Lebanon, Morocco, Senegal and Tunisia), was presented to the Committee. This proposal was compared by the Committee to that of the Study Group to work out recommendations for Article 25bis. (For example: The “joint proposal” provided that any county, “having regard to its economic, scientific, social, and cultural needs” could “at any time” benefit from the provisions via declaration, whereas the Study Group’s proposal limited application to the time of accession by “any country which […] with regard to its economic situation and its social needs does not consider itself immediately in a position to make provision” for Convention protection. The Committee agreed to begin the text with “any developing country,” adopted the joint proposal’s reference to “cultural” needs, but not to “scientific” needs, and took the Study Group’s recommendation to limit reservations to the time of accession.) The text ultimately adopted was a “synthesis of the text presented by the Study Group, of the joint proposal, and of amendments proposed during the meeting.”[14]

1965 November 15-18. The 8th session of the IGC and 12th session of the Berne Permanent Committee met in Paris. These sessions “did not produce many new proposals regarding the special provisions for the benefit of developing countries” because the plans for the Stockholm Conference were “well under way” by this time.[15]

1966 May 15. The official Programme for the 1967 Stockholm Conference was published. This Programme’s special provisions for developing countries did not appear in the form of Article25bis, but instead as an additional protocol annexed to the Convention. It included exceptions regarding translations, terms of protection, radiodiffusion, and uses for exclusively educational, scientific or scholastic purposes, and provided for the possibility of a reservation concerning the right to reproduce press articles.

1967 January 23-30. BIRPI convened an East Asian Seminar on Copyright in New Delhi, the first meeting of its kind to take place in Asia, with India playing a leadership role. One of the items on the agenda was to have participants express their views on a potential draft model copyright law for developing countries, in addition to discussing proposals for Berne revision.

1967 March 14-16. An Extraordinary Session of the Permanent Committee of the Berne Union was held in Geneva to “examine the significance of resolution 5.122 adopted by the UNESCO General Conference” (which had been adopted to enable representatives of African states to become members of the IGC and to facilitate accession of African States to the UCC) and “to assist the Director of BIRPI in formulating advice” to the IGC.

Notes

[1] Charles F. Johnson, The Origins of the Stockholm Protocol, 18 Bull. Cr. Soc. U.S. 91 (1970-71), 49. (hereinafter, The Origins)
[2] The Origins, 96.
[3] The Origins, 97.
[4] The Origins, 101.
[5] The Origins, 109.
[6] The Origins, 115.
[7] The Origins, 113-14.
[8] The Origins, 118.
[9] The Origins, 120.
[10] The Origins,123.
[11] The Origins, 119.
[12] The Origins,123.
[13] The Origins, 129.
[14] The Origins, 134.
[15] The Origins, 134.


Appendix

Year of independence/freedom of subordination, 1943 to 1980
1943 Lebanon
1944 Bulgaria
1944 Ethiopia
1944 Albania
1944 Andorra
1945 Indonesia
1945 Poland
1945 San Marino
1945 Serbia
1945 North Korea
1945 South Korea
1945 China, People's Republic of
1946 Jordan
1946 Philippines
1947 Pakistan
1947 India
1948 Ceylon (Sri Lanka)
1948 Israel
1948 Myanmar
1949 Laos
1951 Libya
1954 Vietnam
1956 Hungary
1956 Morocco
1956 Sudan
1956 Tunisia
1957 Ghana
1957 Malaysia
1958 Guinea
1958 Romania
1960 Central African Republic
1960 Chad
1960 Congo, Republic of the
1960 Cyprus
1960 Côte d'Ivoire
1960 Gabon
1960 Senegal
1960 Somalia
1960 Togo
1960 Madagascar
1960 Congo, Democratic Republic of the
1960 Benin
1960 Niger
1960 Burkina Faso
1960 Mali
1960 Nigeria
1960 Mauritania
1961 Cameroon
1961 Sierra Leone
1961 Tanzania
1961 Syria
1962 Jamaica
1962 Samoa
1962 Trinidad and Tobago
1962 Uganda
1962 Burundi
1962 Rwanda
1962 Algeria
1963 Kenya
1964 Zambia
1964 Malawi
1965 Gambia
1965 Maldives
1965 Singapore
1966 Guyana
1966 Botswana
1966 Lesotho
1966 Barbados
1967 Yemen
1968 Czech Republic
1968 Equatorial Guinea
1968 Nauru
1968 Swaziland
1968 Mauritius
1970 Fiji
1970 Tonga
1971 United Arab Emirates
1971 Qatar
1971 Bahrain
1971 Bangladesh
1973 Guinea-Bissau
1973 Bahamas
1974 Grenada
1975 Comoros
1975 Mozambique
1975 Papua New Guinea
1975 Suriname
1975 São Tomé and Príncipe
1975 Angola
1975 Cape Verde
1976 Seychelles
1977 Djibouti
1978 Dominica
1978 Solomon Islands
1978 Tuvalu
1979 Saint Lucia
1979 Kiribati
1979 Saint Vincent and the Grenadines
1980 Zimbabwe
1980 Vanuatu