Doc. No. 36 (E).
Memorandum on the Clauses of Annex 6
A. Industrial, literary and artistic property.
The clauses of Annex 6 concern the safeguarding and restoration of industrial, literary and artistic property rights injured or lost as a consequence of the state of war. This question does not merely concern relations between former enemy countries, but also relations between Allied countries, between belligerents and neutral countries as well as between neutral countries.
For this reason, pending the conclusion of the Peace Treaties, the question covered by Annex 6 has been examined by the international organisations concerned. Suffice it to mention the resolutions adopted at Zurich (June 1946) by the “Executive Committee for Industrial Property” and—as regards copyrights—the resolutions adopted in Paris in the same month by the Legislation Committee of the “International Confederation of Authors and Composers” which includes some 52 Federated Societies belonging to almost all the countries of the world.
It would be highly welcome if the provisions of Annex 6 could be adopted also by States not signing the Peace Treaty, as well as by Allied and Associated Nations for their mutual relations, in order to attain the necessary uniformity in this field when the time comes for [Page 210] the inevitable regulation of these rights as was done after World War I through the Bern “Arrangement” of June 30, 1920.
In fact, one might adopt, for the cases it covers, the draft of the international “Arrangement” drawn up at Zurich by the above-mentioned “Executive Committee”, completing it with special provisions concerning literary property. This Draft is inspired by the Bern “Arrangement” of June 30, 1920, as well as by the Agreement stipulated by France and Great Britain on August 29, 1945. Moreover, it does not in any way depart from the general provisions contained in Annex 6 of the present Draft Peace Treaty.
2. Should it be desired to retain the clauses of Annex 6, the following amendments would have to be made:
- a.
- The failure to comply with the procedure established by the laws of the various countries concerning industrial, literary and artistic property is due, in most cases, to difficulties arising out of the existence of a state of war. The Italian Delegation therefore proposes that Sept. 1, 1939, be fixed as the date on which these difficulties started. This date was also chosen by the Draft “Arrangement” drawn up at Zurich. (The Franco-British agreement of August 29, 1945, and an Italian law on this subject fix the date at Sept. 3, 1939 and August 31, 1939 respectively.)
- b.
- To avoid any uncertainty which the expression “owing to the
existence of a state of war” might give rise to, the
substitution of the three lines of sub-paragraph 1, a, with the following sentence is
proposed:
“… preserving in Italy of rights in industrial, literary and artistic property already acquired on Sept. 1, 1939, or which, had war not broken out, could have been acquired after this date as the result of an application made before or during the war”.
- c.
- In sub-paragraph 1, b, it should be made quite clear that applications for the right of priority mentioned in Article 4 of the international Convention of Paris can only be made by Allied and Associated Powers which are members of the Union, or by their nationals. Consequently it is proposed that, in the first line, the words “belonging to the Paris Convention” be added after “The Allied and Associated Powers”.
- For the reason set forth above it would be advisable to substitute the date of Sept. 1, 1939, to that of the outbreak of war with Italy contained in the clause under sub-paragraph 1, b. The two sentences “12 months before the outbreak of the war with Italy” should be replaced by “12 months before Sept. 1, 1939” and “six months before Sept. 1, 1939”.
- d.
- In accordance with the provisions contained in the Bern “Arrangement”, the Zurich draft “Arrangement” and the Franco-British Agreement, the Italian Delegation proposes that the time-limit laid [Page 211] down in paragraph 2 be fixed “from Sept. 1, 1939, to the date of the coming into force of the present Treaty” and not “from the outbreak of the war until a date 18 months after the coming into force of the present Treaty”. There is in fact no justification for such a long delay.
- e.
- Concerning paragraph 3, the Italian Delegation agrees as to the advisability of excluding the war period from the normal duration of rights in industrial, literary and artistic property. The Italian Government on its part, with a law of June 20, 1945, concerning literary and artistic property has already provided for an extension of the duration of rights in the economic exploitation of intellectual production.
- The Italian Delegation proposes that, in analogy with the other terms, the date from which the further period provided in paragraph 3 should begin shall be fixed at Sept. 1, 1939.
- Instead of “… which were in force in Italy at the outbreak of the war” the sentence: “which were in force in Italy on September 1, 1939” should be inserted.
- f.
- The Italian Delegation finds that the proposal of the U.S.S.R. Delegation to suppress the sentence in italics in paragraph 4 is justified, for it would be extremely difficult to ascertain the rights granted by any one Allied or Associated Power to any other United Nation.
- g.
- In paragraph 5 the protection of the rights belonging to third
parties should also be extended to literary and artistic
property. It would be sufficient to add to the first part of
paragraph 5 the words underlined in the following sentence:
“… Have bona fide acquired industrial, literary and artistic property rights …”
- h.
- The Italian Delegation also proposes that, failing agreement between the parties concerned, the terms and conditions of license mentioned in the second part of paragraph 5 be fixed by the Mixed Court proposed in Article 76 bis (Italian amendment) and not by the Conciliation Commission established under Article 72 of the present Treaty. The controversies would in fact concern relations between private persons and not between governments.
- i.
- With regard to paragraph 8 it should be recalled that the Italian Delegation has suggested that rights in industrial, literary and artistic property should not be included in the property which, according to paragraph 1 of Article 69, may be retained or liquidated. There is consequently no ground for mentioning Article 68 in paragraph 8, Annex 6. Such mention should therefore be suppressed.
- l.
- [sic] In accordance with what has
already been said, the Italian Delegation insists that clauses
be added to Annex 6 establishing:
- —the date of cessation of the measures which the Signatory Countries of present Treaty intend to adopt; and
- —the revision of conditions of license both with regard to the payment and the duration.
The Italian Delegation consequently accepts the proposals contained in resolution No. 3 adopted by the “Legislation Committee” of the “International Confederation of Societies of Authors and Composers”. This resolution, with regard to the revision of the conditions of exploitation of rights, is consistent in principle with the clause of Article 2 of the Franco-British Agreement of August 29, 1945 and reads as follows:
“The measures taken by certain countries (other than measures forbidding or restricting relations with the enemy or concerning enemy property or the export of capital) which infringe on the rights enjoyed by foreign authors in these countries before the war, shall cease to have effect, and a revision of the financial terms for the exploitation of their works in the past shall be made at the request of the parties concerned. Suitable provisions shall also be made concerning the time-limit legally established for these rights, subject to transitional measures which may be granted to spread, over a short period of time, rights acquired by third persons.”
5. In order to avoid the difficulties which the cession of territories might cause to the owners of rights in industrial, literary and artistic property following their change of nationality, it would be advisable to add a clause recognising and keeping in force industrial, literary and artistic property rights for the duration established in Italian law.
A clause of this kind would not be without precedent in other Peace Treaties, for such clauses already exist in the Treaties of Versailles (Art. 311), Saint-Germain (Art. 264 and 274) and Lausanne, July 24, 1923 (Art. 8).
The need for such a clause is also recognised by the “Committee of Legislation” mentioned above (Proposal No. VI).
It might be worded as follows:
“The inhabitants of the territories ceded by Italy in compliance with the present Treaty shall retain, notwithstanding the cession and their subsequent change of nationality, the full enjoyment in Italy of all industrial, literary and artistic property rights which they owned under Italian law at the time of the cession.
“The industrial, literary and artistic property rights in force in the territories ceded by Italy in compliance with the present Treaty, or those to be restored through the application of the provisions of the present annex, shall be recognised by the Country to which said territories are ceded. These rights will remain in force for the duration granted by Italian law.”
6. Italy has stipulated bilateral treaties concerning literary and artistic property with the United States of America, with the Republic of Cuba and with Nicaragua. She also has an Agreement with the [Page 213] U.S.S.R. providing for a temporary status quo with regard to industrial, literary and artistic property.
The U.S.S.R. did not take part in the Paris Convention of March 20, 1883 for the safeguarding of industrial property or in the Bern Union of September 9, 1886 for the protection of literary and artistic property. The three other States mentioned above did not take part in the latter Convention. Therefore the reasons set forth for the modification of Article 37 concerning bilateral treaties in general are even more valid when applied to bilateral treaties concerning industrial, literary and artistic property. In their case, in fact, the period of uncertainty—fixed by said Article at six months after the coming into force of the Treaty—might seriously prejudice the exercise of the rights protected by these bilateral treaties.
Should the Italian Delegation’s proposal for the modification of Article 37 not be accepted, a special clause concerning bilateral treaties dealing with industrial, literary and artistic property should be inserted.
Such a clause might be worded as follows:
Art. 37 bis.—“1. Each Allied or Associated Power will notify Italy within a period of six months of the coming into force of the present Treaty which bilateral treaty concerning industrial, literary and artistic property it does not desire to keep in force.
“2. All treaties so notified are to be regarded as abrogated one month after the date of notification.
“3. Any provision of treaties not so notified which are not in conformity with the present Treaty shall be deleted.
“4. The Treaty thus kept in force will be registered with the Secretariat of the United Nations in accordance with Article 102 of the United Nations Charter.”
Note.—See:
Bern “Arrangement” of June 30, 1920;
Resolutions adopted at the Paris meeting of June 1946 by the “Legislation Committee” of the “International Confederation of Societies of Authors and Composers”;
Resolutions adopted at the Zurich meeting of June 1946 by the Executive Committee of the “International Associations for the Protection of Industrial Property”;
Franco-British Agreement of August 29, 1945.