RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/103
30 June 1998
(98-2579)
Council for Trade-Related Aspects
of Intellectual Property Rights
CALCULATION OF RENEWABLE PERIODS OF TEN YEARS UNDER THE PROVISIONS
OF THE APPENDIX TO THE BERNE CONVENTION AS INCORPORATED BY
REFERENCE INTO THE TRIPS AGREEMENT
Background Note by the Secretariat
1. At its meeting of 22 February 1996, the Council for TRIPS considered procedures for those
notification requirements  under  the provisions  of the Berne Convention and the Rome Convention
that were incorporated by reference into the TR IPS Agreement but not explicitly referred to in it,
including those contained in the Appendix to the Berne Convention (1971).  The Council agreed to
invite each Member wishing to make such notificatio ns to make them to the Council for TRIPS, even
if the Member in question had already made a notification under the Berne or Rome Convention in
regard to the same issue.  It also drew Members' a ttention to the discussion of questions relating to the
timing of these notifications, contained in paragraphs 16 through 21 of document IP/C/W/15, abackground note prepared by the Secretariat aimed at explaining the nature of the various notification
provisions in question.  In paragraph 19 of that document, it was noted that, as far as the calculation of
renewable periods of ten years was concerned (Article I(2) of the Appendix), this was a question that
the Council would need to look into if any Member were to invoke any of the provisions of the
Appendix as incorporated into the TRIPS Agreemen t, and that it did not seem necessary for the
Council to come to a view on the matter at that point.
2. At the Council's meeting of 12 May 1998, the Chairman informed the Council that two
notifications concerning the provisions of Articles I and IV(2) of the Appendix had been received
from Panama (document IP/N/5/PAN/2).
1  The Council agreed to request the Secretariat to prepare a
background note on the issue raised by the Panamanian notifications in question, namely thecalculation of renewable ten-year periods for which such notifications remain valid, and to revert to
the matter at the next meeting.  The purpose of this note is to respond to this request.
3. In order to ensure that the Council for TRIPS has full knowledge of the practice under the
Berne Convention, the Secretariat requested the International Bureau of WIPO, whose Director
General is the depositary of the Stockholm Ac t (1967) and the Paris Act (1971) of the Berne
Convention, to provide information on how this peri od is calculated under the Berne Convention, and on
those notifications that are currently in force under the provisions of the Appendix.  The following
information on the calculation of the renewable peri ods of ten years for the purposes of the Berne
Convention (1971) and on the notifications currently  in force under the Berne Convention is based on
the response by the International Bureau, contained in a letter dated 8 June 1998.
                                                     
     1Panama has notified, inter alia , that it is availing itself of the faculty provided under Article I of the
Appendix to the Berne Convention, including the faculties referred to in Articles II and III of the said Appendixconcerning compulsory licences to translate and reproduce works published in printed or analogous forms of
reproduction.IP/C/W/103
Page 2
I. NOTIFICATION PROVISIONS OF THE APPENDIX TO THE BERNE
CONVENTION
4. Article 9.1 of the TRIPS Agreement requires Me mbers to comply with the Appendix to the
Berne Convention (1971), which contai ns special provisions for developing countries.  Paragraph (1)
of Article I of the Appendix requires a developing country Member wishing to avail itself of thepossibilities provided in the Appendix to declare that it will avail itself of the faculty provided in
Article II and/or Article III of the Appendix (compulsory licences for, respectively, translations and
reproductions) by means of a notification.
2
5. Paragraph (2) of Article I of the Appendix deals with the duration of the effectiveness of such
notifications:
(a) Subparagraph (a) provides that any declaration under paragraph (1) of that Article,
notified before the expiration of the period of ten years from the entry into force ofArticle 1 to Article 21 and the Appendix of the Paris Act of 1971 of the Berne
Convention according to Article 28(2) of that Act, shall be effective until the
expiration of the said period.
(b) Subparagraph (b) provides that any declaration under paragraph (1) of that Article,
notified after the expiration of the period of ten years from the entry into force ofArticle 1 to Article 21 and the Appendix according to Article 28(2), shall be effective
until the expiration of the ten-year period then running.
(c) Subparagraphs (a) and (b) provide that any such declaration may be renewed in whole
or in part for periods of ten years each by a notification made not more than
15 months and not less than three months before the expiration of the ten-year periodthen running.
6. The texts of paragraphs (1) and (2) of Article I of the Appendix to the Berne Convention
(1971) are reproduced in an Annex.
3
II. CALCULATION OF RENEWABLE PERIODS OF TEN YEARS
7. Articles 1 to 21 of and the Appendix to the Paris Act of 1971 of the Berne Convention entered
into force according to Article 28(2) of that Act on 10 October 1974.  Therefore, for the purposes of
the Berne Convention (1971), the periods referred to in Article I(2) of the Appendix are calculated as
follows:
(a) The first ten-year period referred to in subparagraph (a) expired on 10 October 1984.
(b) The period of ten years currently running is from 10 October 1994 to
10 October 2004.
                                                     
     2For the purposes of the TRIPS Agreement, notifications under the provisions of the Appendix must be
made to the Council for TRIPS, and for the purposes of the Berne Convention (1971), to the Director General of
WIPO.
     3The Appendix contains a number of additional notification provisions, but they are not relevant to the
issue at hand.  For further information on these provisions, see document IP/C/W/15.IP/C/W/103
Page 3
(c) Possible renewals of the notifications that are currently effective must take place by
means of a notification made between 10 July 2003 and 10 July 2004.4
8. The provisions of Article I(2) of the Appendix as incorporated into the TRIPS Agreement can
be understood so that, for the purposes of the TRIPS Agreement, the relevant periods are calculated
by reference to the same date, i.e. 10 October 1974, as for the purposes of the Berne Convention.5
This would mean that renewable periods of ten years would be the same for the purposes of both
Agreements, and that, also under the TRIPS Agreement, the period of ten years currently running
would expire on 10 October 2004.6  Such an understanding would make the management of such
notifications easier for those developing countries wi shing to avail themselves of the provisions of the
Appendix under both Agreements.  In addition, this would facilitate transparency for other Members
and their nationals whose rights might be affected by the use of those provisions.
                                                     
     4At present, the following five declarations made under Article I of the Appendix are effective under the
Berne Convention:  Thailand's declaration of 23 May 1995 concerning Article II, Mongolia's declaration of12 December 1997 concerning Articles II and III, Cuba's declaration of 20 November 1996 concerning Articles IIand III, Algeria's declaration of 30 March 1998 concerning Articles II and III, and the Philippines' declaration of18 March 1997 concerning Articles II and III.  The complete texts of these notifications are available in the WTO
Secretariat for consultation by interested delegations.
     5Another way of understanding these provisions for the purposes of the TRIPS Agreement might be to
attempt to calculate the renewable periods of ten years by reference to the entry into force of the TRIPSAgreement.  However, use of the same date as under the Berne Convention would have the obvious advantages
referred to in paragraph 8.
     6As regards the notifications made by Panama to the TRIPS Council, this understanding would mean
that these notifications would remain effective for the purposes of the TRIPS Agreement until 10 October 2004.  IfPanama would wish to extend their effectiveness beyond that date, it should renew them by means of a notification
made to the Council between 10 July 2003 and 10 July 2004.IP/C/W/103
Page 4
ANNEX
Paragraphs (1) and (2) of Article I of the Appendix to the Berne Convention
(1) Any country regarded as a developing c ountry in conformity with the established
practice of the General Assembly of the United Nations which ratifies or accedes to this Act, of which
this Appendix forms an integral part, and which, having  regard to its economic situation and its social or
cultural needs, does not consider itself immediately in a position to make provision for the protection of
all the rights as provided for in this Act, may, by a notification deposited with the Director General at the
time of depositing its instrument of ratification or accession or, subject to Article V(1) (c), at any time
thereafter, declare that it will avail itself of the f aculty provided for in Article II, or of the faculty
provided for in Article III, or of both of those faculties.  It may, instead of ava iling itself of the faculty
provided for in Article II, make a declaration according to Article V(1) (a).
(2)(a) Any declaration under paragraph (1) notified before the expiration of the period of ten
years from the entry into force of Articles 1 to 21 and this Appendix according to Article 28(2) shall be
effective until the expiration of the said period.  An y such declaration may be renewed in whole or in
part for periods of ten years each by a notification deposited with the Director General not more thanfifteen months and not less than three months before the expiration  of the ten-year period then running.
(b) Any declaration under paragraph (1) notified after the expiration of the period of
ten years from the entry into force of Articles 1 to 21 and this Appendix according to Article 28(2) shall
be effective until the expiration of the ten-year period then running.  Any such declaration may be
renewed as provided for in the second sentence of subparagraph (a).
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