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The standards of copyright protection promoted by the Berne Convention are highly problematic for developing countries because these countries need to ensure a wide dissemination of works for teaching, scholarship, and research purposes. In order to accommodate these needs and to promote accession to this Convention, the 1971 Paris Act of the Berne Convention, included an Appendix that allowed developing countries to issue compulsory licenses for translating and/or reproducing foreign works into languages of general use in their territories. Unfortunately, the Appendix has not met the needs of developing countries, which, instead, have relied on idiosyncratic solutions. Additionally, the instrument does not provide solutions for other needs, such as those of linguistic and cultural minorities, and it is arguable whether the Appendix applies online.

Section one of this paper provides background information on the needs of developing countries and shows how the Appendix of the Berne Convention tried to meet them. Section two analyzes the main limitations of the mechanism of compulsory licensing adopted by the Appendix. Although, the mere fact that the Appendix does not comply with its very purpose should be enough to warrant a new instrument, section three discusses two additional reasons in favor of adopting a new instrument to meet the needs of developing countries. In particular, this section focuses on general welfare and the economic benefits for authors and right holders. Finally, section four outlines the issues that should be included in a new instrument that effectively meets development needs.


Publication forthcoming in the Journal of the Copyright Society of the U.S.A.