Compulsory Licensing Copyright And Patents

COMPULSORY LICENSING﷓COPYRIGHT AND PATENTS' COMPULSORY LICENSING‑COPYRIGHT AND PATENTS [Paper read at Regional Forum on the Judiciary and the Intellectual Property System organized jointly by the World Intellectual Property 'Organization `(WIPO) and the Judges of the. superior Courts of Pakistan in association with the' Law Association for Asia and the Western Pacific (LAWASIA) and with the assistance of the: United Nations Development Programme (UNDP) Islamabad, Pakistan.] By MR. JUSTICE AJMAL MIAN Chief Justice Baluchistan High Court, Pakistan [5th to 9th October, 1986] Assignment or grant of exclusive or non‑exclusive licence in respect of a copyright work or a patent by an owner of copyright or a patentee is a well‑recognized mode of transfer under the laws of Copyright and Patent in most of the counties of the world. Whereas, a compulsory licence as is evident from the term is without the volition OT the owner of copyright or of a patentee. The, introduction of compulsory licensing in copyright was not with a happy note. In this regard, it may be pertinent to refer to the history of the development of copyright law. In the late 15th century as a result of Gutenberg's invention of printing and the expansion throughout Europe of the religious learning concept of copyright came into existence. At about this time, William Caxton established a printing press in Westminster in 1476, city of Venice inaugurated a system of granting "Privileges" or monopoly right to print certain books. The practice then obtaining of grating exclusive publishing rights by the sovereign was spread over quickly to other countries and became a common trade practice during the 16th and 17th centuries. "In England, Richard III in 1483 enacted a statute encouraging the printing of books and permitting their importation, but the above statute was repealed 50 years later on protectionist grounds. In 1556, the original Charter of Stationer's Company was granted by Philip and Mary giving the members of this guild of London, printer's monopoly right in the books, they published. All books were required to be submitted for official approval and to be entered on the Company's register. Both unauthorized printing and failure to register were punished by decrees of the Court of Star Chamber. The object of enacting the above statute at that time was to prevent the propagation of reform religion, namely, protestant: It was considered that this could most effectually be brought by imposing strict restrictions on the press. The above restriction; on the freedom of Press continued for more than a century, but unpopularity of the Star Chamber led to a new legislative system recognizing perpetual rights in registered books and providing penalties for their violation. The Parliament abolished the Star Chamber in 1640, but passed a new Licensing Ordinance in 1643, which prohibited the printing or importing of any book that had been lawfully licensed and entered in the register of the Stationer's Company, for any particular number thereof without licence and consent of the owner, the penalty prescribed was forfeiture of the book to the owner and such further punishment as might be thought fit. The above Ordinance had put to an end the licensing system then obtaining for controlling the press and accorded recognition to copyright by‑enacting the above provision. The above Ordinance was followed by Ordinances of 1647, 1649, 1652 and Copyright Acts of 1709, 1814, 1842 and 1911 the latter Act is important, as under section 4 of the same, the compulsory licensing system in respect of copyright was introduced in the modern sense. The above Act was made applicable to all British dominions except to a self‑governing dominion unless the legislature of that dominion made it applicable by declaration. The above Act was also adapted by a number of European countries in addition to the self‑governing dominions of the British Commonwealth. However, in India in 1914, Copyright Act, 1914 was enacted, which adopted the above Copyright Act, 1911 with certain modifications. In the United Kingdom, a new Copyright Act has been enacted, namely Copyright Act, 1956, which has repealed Copyright Act, 1911 and has omitted provisions relating to compulsory licensing. In India, Copyright Act, 1957 has been enacted, which has been amended in 1971, 1983 and 1984, whereas, in Pakistan Copyright Ordinance, 1962 (Ordinance 34 of 1962) was promulgated in June, 1962. The above Indian Act and Pakistani Copyright Ordinance contain provisions of compulsory licensing. 2. Before dilating upon, the question of compulsory licensing in copyright in detail, it may be appropriate to know the, meaning and characteristic of the term "copyright'. It is the term used in English speaking countries to characterize the legal recognition of right to control or benefit from the communication of works of authorship. Copyright denotes not only a right to copy, but also the right to own and control the copy i. e., prototypic work of authorship itself. The word 'copyright' is sometimes used interchangeably with terms such as literary property or intellectual property, none of which, identify the primary beneficiary of the rights they cover. In contract, equivalent terminology in other languages such as 'droit d'auteur' (French), `Urheberrecht (:German) and 'derecho del autor' (Spanish) 'do identify the beneficiary and can usually be translated simply as 'right of the author'. Copyrights Protect works that owe their origin to the expressive efforts of a writer, composer, artist or other creative individual so long a3 the work is original in the sense that it was created independently. The question what constitutes original work has been the subject- matter of discussion in a number of judgments of the various Courts of the world. Lord Atkinson in the case of MacMillan & Co. v. Cooper ((1923) L R 51 Ind. App. 109) defines the same as follows:-- "It is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if we may use the expression, upon which the labour and skill arid capital of the first had been expended. To secure copyright for the products it is necessary that labour, skill and capital should be expended sufficiently to import to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material." 3. The history of the development of the copyright law referred to hereinabove manifests that initially the compulsory licensing system was introduced to curtail the freedom of press and it was not designed intended to benefit the authors, owners of the copyright works or the public at large. The above object was given up in the United Kingdom at the time of passing of Licensing Ordinance, 1643. The compulsory licensing was introduced in terms of section 4, of the English Copyright Act, 1911, which had empowered the judicial Committee of the Privy Council, to grant a compulsory licence for the publication or reproduction on the failure of the owner of the copyright or refusal to republish or to allow the republication at any time after the death or an author of a literary, dramatic or musical work, which had been published and performed in public, subject to such conditions as the Judicial Committee might think fit, whereas, under proviso to section 3 of the Act, a right was conferred for the reproduction of the work for sale, at any time after the expiration of 25 years or in the case of a work, in which, copyright subsisted at the time of passing of the above Act, 30 years from the death of the author of a published work upon giving the prescribed notice in writing by the person interested and on payment of royalty at the rate of 10% on the price, at which, he published the work. The above provisions were not enacted in the English Copyright Act, 1956 on the basis of the recommendations of the Copyright Committee of 1951 as it was thought that the same were inconsistent with the Brussels Text of 1948 pertaining to International Berne Convention for the protection if Literary and Artistic Works. However, paragraph 9(i) of the 7th Schedule to the Act, 1956 provided saving of the cases, in which, notices under proviso to section 3 of the Act were already served at the time of repeal of the above Act of 1911. In addition to the above saving provision, there are some other provi sions in the above Act of 1956, which have relevancy to the point under discussion, namely, section 8 which entitles a person to make a record of the performance of a work on the fulfilment of the conditions contained therein, and sections 23 to 30, which deal with the establishment of "Performing Right Tribunal" and its jurisdiction, etc. 4. It may be pertinent to point out that on account of the formation of various Societies/Companies in a number of countries and framing of Licence Schemes, for grant of performance licences to the Organizations and persons desiring to obtain the same, a new kind of compulsory licensing system has come into existence. Such Societies/Companies have been, inter alia, floated/formed in England and Germany etc. In England, inter alia, the following Societies/Companies are operating: (i) Performing Right Society Limited (Known as P. R. S.) (ii) Mechanical Copyright Protection Society (Known as M. C. P S.) (iii) British Copyright Protection Society (Known as BRITICO) (iv) Copyright Licensing Agency (Known as C. L. A.) (v) Phonographic Performance Limited (Known as P. P. L.) (vi) Video Performing Limited Whereas, in Germany there is, inter alia, West German Collecting Society (GEMA). The object of the above Societies/Companies is to grant performing licences on behalf of the authors, publishers and the persons in whom copyright vest for the time‑being, and to collect licence fees and to pay or to apportion the same among the persons entitled to the same. In Pakistan and in other developing countries there are not many Societies/Companies on the pattern of the above European Societies/Companies. In Pakistan, the Copyright Ordinance, 1962 recognizes the Performing Right Societies; clause (s) of section 2 of the Ordinance defines Performing Right Society as, 'a society, association or other body, whether incorporated or not, which carries on in Pakistan the business of issuing or granting licences for the performance in Pakistan of any work, in which, copyright subsists'. English Copyright Act, 1956 not only recognizes the working of the above Societies Companies, but also contemplates framing of licensing schemes; the object of which is to grant licences to the organizations or persons desiring to obtain the same. Subsection (1) of section 24 provides that the function of the Performing Right Tribunal shall be to determine disputes arising between licensing bodies and persons requiring licences or the organizations claiming to be the representative of such persons. Whereas, under sections 25 to 27, the Performing Right Tribunal has been empowered to cause the grant of licences on reasonable terms from the licensing bodies or from the framer of the licence schemes. In my view, though the above Societies Companies have not been formed or constituted under any statutory requirement, yet once the above Societies/Companies have been formed and constituted and the schemes have been framed, the organizations or persons desiring to obtain licence for the various categories of the items mentioned in clauses (a) to (c) of subsection (2) of section 24, can compel the grant of the same by getting the matter referred to the Performing Right Tribunal. It can, therefore, be said that the licences which can be obtained through the aid of Performing Right Tribunal are akin to compulsory licences, but the scope of the Performing Right Tribunal is confined to the Performing Right Licences in a literary, dramatic or musical work or in a sound recording or a television broadcast. 5. The provisions relating to compulsory licensing contained in Pakistani Copyright Ordinance, 1962 (hereinafter referred to as the 'Ordinance') and in India under the Copyright, Act, 1957 are more extensive as compared to section 4 or proviso to section 3 of, the Copyright Act, 1911 adapted in undivided India by Act No. III of 914. In the above Indian Copyright Act, a new section, namely, section 31‑A has been enacted by Act 23 of 1983, providing compulsory licences in unpublished work and, thus thereby extending the scope of compulsory licensing. It may again be pointed out that under the above section 4 of the Copyright Act, 1911, compulsory licences could only be claimed at any time after the death of the author of a literary, dramatic or musical work, which had been published or performed in the public upon a complaint to be made to the Judicial Committee of the Privy Council, whereas; under proviso to section 3, reproduction of the work could have been made at any time after the expiration of 25 years or in the case of a work in which copyright subsisted at the time of passing of the above Act of 1911, 30 years from the death of the author of a published work. In contrast td the above provi sions, under section 36 of the Ordinance (which corresponds to section 31 of the Indian Copyright Act, 1957 with certain additions) an application for compulsory licence can be made at any time‑during the term of copyright even during the lifetime of the author of the copyright. The above section 36 provides that if at any time during the term of copyright in any Pakistani work which has been published or performed in public, an application is made to the Board that the owner of the copyright in the work (a) has refused to republish or allow republication of the work, or has refused to allow the performance in public of the work and by reason of such refusal, the work is withheld from the public; or (b) has refused to allow communication to the public by radio diffusion of such work or in case of a record, the work, recorded in such record, on terms which the applicant considers reasonable. It further provides that upon receipt of an application, the Copyright Board (constituted under the Ordinance) after giving the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that such refusal is not in the public interest, or that the grounds for such refusal are not reasonable, direct the Registrar (appointed under the Ordinance) to grant to the applicant a licence to republish the work, perform the work in public or communicate the work to the public by radio diffusion, as the case may be, subject to payment to the owner of the copyright of such amount and subject to such other terms and conditions as the Board may determine. It may also be stated that section 37 of the Ordinance (which corresponds to section 32 of the Indian Copyright Act, 1957) entitles any citizen of Pakistan or a person domiciled in Pakistan to apply to the Board for a licence to produce and publish a translation of a literary or dramatic work in any Pakistani language or a language ordinarily used in Pakistan. 6. It will not be out of context to point out that under section 36, compulsory licence can be granted only in respect of any Pakistani work published and performed in public, whereas, under section 37, there is no such qualification and, therefore, under the above section, any citizen of Pakistan or person domiciled in Pakistan may apply to the Board for a licence to produce and publish a translation of a literary or dramatic work, which may not be a Pakistani work. It can, therefore, be argued that the above provision is in conflict with the Berne Convention. For Protection of Literary And Artistic Work of 9th September, 1886 as revised in 1971 in Paris and as amended on 2nd October, 1979 and Universal Copyright Convention Geneva 1952 as revised in Paris in 1971, if the owner of the copyright of the work, which, is sought to be translated, is a citizen or domiciled in any of the foreign countries which is signatory to the above Conventions, as Pakistan is also a signatory to the above Conventions. In my view, the above section is substantially to conformity with the Stockholm Protocol regarding developing countries, adopted on lath July, 1967, which was, an integral part of the Stockholm Text of Convention and which contemplated concession to developing countries allowing them to male use of the work of other Union countries under defined, `compulsory licensing system'. However, it is pointed out that none of the developed countries accepted the above text, with the result that Universal Copyright Convention was held at Paris in July, 1971 which adopted a new text of the Berne Convention that retained the original text of the body of the Conven tion already adopted at Stockholm Conference, but modified the protocol relating to the compulsory licensing system for developing countries and allowed them under Articles II and III thereof to grant compulsory licences after the expiry of the period prescribed therein from the date of first publication, for translation and reproduction of works of foreign origin required for purposes of teaching, scholarship or research or for purposes of systematic instructional activities. 7. Adverting to compulsory licensing in respect of patents, it may be pertinent to observe that its induction into patent law was not promoted for any mala fide reason, as was in the case of copyright as highlighted hereinabove, it may be appropriate to refer to the historical background of the development of law of patent and the induction of compulsory licensing system into it. Patent for inventions was first introduced in the 15th century in certain Italian States. The first known grant by a State to an inventor having taken place in the Republic of Florence in 1421, which was followed by an Ordinance relating to patent in Venice in 1474. The above concept spread over to other European States and during the following two centuries, the grant of invention patent became more and more common and regular. At first, the above grants were ordinarily made without any specific statute on the subject, but by virtue of general authority and power of the ruler. In the United States of America, a formal comprehensive statute was not enacted until the end of the 18th century. It was in 1787, when Constitution gave the Congress the power to promote progress of the useful arts, by securing for a limited time to inventors the exclusive rights to their discoveries. In Europe also the statutes were enacted in 19th century i.e. in the Netherlands (1809). Austria (1810), Russia (1812), Bavaria (1812), Prussia (11,15), Sweden (1826), Spain (1826), two Canadian Provinces (1823, 1826). Mexico (1832), Brazil (1840), Chile (1840), and the Republic of Texas (1839) before it joined the United States. There was no general statute in Great Britain until 1852. In Germany, the individual German States enacted provisions for the granting of patent but aft ‑r the unification of new Germany, passed a new patent law effective in 1877. The Sardinian Patent Law of 1859 was extended to the test of Italy in stages as the country became unified from 1860 to 1870. By the end of 19th century, a large number of countries had enacted patent laws and some had revised. There seems to be unanimity among the laws of the various countries on the point that patent can be applied for an invention. The World Intellectual Property Organization (W. I. P. O.) in its brochure of 1986 defines the term `Invention' as follows "An invention is a novel idea which permits in practice the solution of a specific problem in the field of technology. Under most legislations concerning inventions, the idea, to be protected by law ('Patentable'), must be new in the sense that there is no indication that it has already been published or, publicly used; it must be non‑obvious in the sense that it would not have occurred to any specialist in the particular industrial field, had such a specialist been asked to find a solution to the particular problem; and it must be immediately applicable in industry in the sense that it can be industrially manufactured or used." 8. Reverting to the subject of compulsory licensing of patents, it may be observed that the induction of the compulsory licensing into patent law has been universally uniform. The patents are granted to encourage the industrial progress. A patent grant may be treated as a contract between a State and an individual. The State gives to the patentee the right to prevent others from making use of his inventions under the implied condition that the patentee undertakes to exploit his invention in the State and so permits the community to obtain the benefit in respect thereof. The community ultimately having the right to exploit the invention freely. It is, therefore, logical that in most countries, the patentee, who fails to put his invention into practice in the State within the prescribed period, may have his patent right reduced or revoked. It may be observed that failure on the part of a patentee to exploit an invention is regarded as an abuse of monopoly right. In most countries of the world, resort is made to open compulsory licensing or, to revocation or even providing automatic lapse of the patent on the expiry of a certain period. The compulsory licensing in respect of patent has attained more significance, infer alia, on account of the fact that Article 5 of the Paris Convention. For the Protection of Industrial Property of 20th March, 1883 (last amended in October, 1979) provides that no patent shall be revoked for abuse of monopoly right, unless the compulsory licence has proved insufficient to prevent abuse and then only after the expiry of two years from the date of granting of the first compulsory licence. Furthermore, an application for compulsory licence cannot be made because of the above International Convention in less than three years from the date of the grant of patent or four years from the date of filing of applica tion for patent. It has also been provided that a compulsory licence shall be granted only if the patentee fails to justify the failure by legitimate reason, i.e. force majeure. In England, the compulsory licensing system was first time introduced upon passing of the Patent Act, 1803 on the ground of abuse of monopoly right. Section 22 of the above Act empowered the board of trade to grant compulsory licence where (i) the patent was not being worked in the United Kingdom or (ii) the reasonable requirements of the public with respect to the invention were not satisfied, or (iii) any person was prevented from working or using an invention, of which he was possessed of. The above Act was followed by Acts of 1902, 1907, 1911 and 1949. The latter Act of 1949 extended the grounds, on which, a compulsory licence could be obtained or the patent endorsed with the, words "licences of right" or could be revoked. It also provided compulsory licensing in respect of food, medicines, surgical and curative devices, even before the expiry of a three or four years period. The above Act was replaced by Patent Act. 1977, in which, the special provisions relating to food, medicines, surgical and curative devices have been omitted. Sections 37 to 40 of the Act of 1949 dialing with the grant of compulsory licences have substantially been re‑enacted in the form of sections 48 to 51. In Pakistan, we have Patents and Designs Act, 1911, which has been amended from time to time, whereas, in India, the above Act has been replaced by Patent Act, 1970 (Act XXXIX of 1970). By now the compulsory licensing system has become a well‑recognized feature of patent laws throughout the world, inter alia, in Pakistan (S. 22). India (S. 96j, Algeria (S. 451, Iran (S. 2R), Kuwait (S. 31), Nigeria (S. 11), Japan (S. 92). South Africa (S. 49). Peru (S. 77). France (S. 36), Denmark, Finland, Norway and Sweden (S. 46), Italy, (S. 54), Netherland (S. 34), Switzerland (S. 36), Hungary (S. 22) and Yugoslavia (S. 29) one of the grounds for the grant of compulsory licence is that a later invention cannot work without infringing the earlier patented invention. In some of the above countries, compulsory licences are granted on the condition that the subsequent inventor shall grant cross‑licence to the earlier patentee. In some of the above countries, there is also a requirement of the expiry of a specified period before any compulsory licence can be granted, like in France and Yugoslavia, three years period has been prescribed. To illustrate the above type of compulsory licence, it will suffice to refer to the legal position obtaining in some of the above countries (a) In India at any time after the sealing of a patent, any person having the right to work any other patented invention which has made a substantial contribution to the establishment or develop ment of commercial or industrial activities in India, may obtain a licence under the patent on the ground that he is prevented or hindered without such licence from working the other invention efficiently or to the best advantage possible. The applicant for licence must be in a position to grant or procure the grant of a cross‑licence on reasonable terms (S. 96). (b) In Algeria if a patented invention cannot be used without risk of infringing an earlier patent, a compulsory licence may be obtained to the extent necessary to enable the subsequent patentee to use his invention. But, if both inventions pertain to the same indus trial purpose the licence will be granted subject to the right of the earlier patentee to obtain a licence under the subsequent patent (S. 45). (c) In Japan if a patentee cannot work his invention without infring ing someone else's patent, he may be granted a compulsory licence (S. 92). (d) In France the owner of a patent covering an improvement in an earlier patented invention cannot work his patent without licence from the earlier patentee, nor can the latter work the patented improvement without licence from the subsequent patentee. However, at the expiry of three years from the grant, or four years from the date of application, of the earlier patent, the junior patentee may obtain non‑exclusive compulsory licence to the extent necessary to enable him to work his own patent, provided he is able to show that his invention represents an important technical advance over the earlier invention. The senior patentee may then obtain a cross‑licence (S. 36). It may be pointed out that the above type of compulsory licence where subsequent invention cannot function without infringing the earlier paten ted invention in some countries, like Albania, Austria, Bulgaria, Czecho slovakia, Poland and U. S. S. R. is known as "Patent of Dependence". In some countries like, Canada, Ireland, Malawi, New Zealand, Rhodesia. South Africa and Zambia, special provisions have been made in the relevant enactments providing the grant of compulsory licence even before the expiry of three or four years period to any person interested at any time in respect of process or substance capable of being used as food or medicine or production of food, or is a part of a surgical or curative device. Whereas, in India by virtue of section 87 of the Patent Act, 1970, all patents in respect of above items of food and medicines at the time of the enforcement of the above Act were converted into by operation of law as patents with endorsement with the words `'Licences of, Right". Patents in respect of the aforesaid items after the enforcement of the above Act are granted with the above endorsement. 10. As pointed out hereinabove, in Pakistan the Patents and Designs Act, 1911 (Act 11 of 1911) is still holding the field, which has been amended from time to time to meet the requirement of the changed situa tion. Section 22 of the above Act provides that any person interested may present a petition to the Central Government together with the pres cribed fee alleging that the demand for a patented article in Pakistan is not being met to an adequate extent and on reasonable terms and praying, for a grant of a compulsory licence or in the alternative for revocation of the licence. Upon the receipt of the above petition. if the parties do not come to an arrangement between themselves, the Central Government tray, as it thinks fit, either dispose of the petition itself or refer it to a High Court for decision and if the Central Government or the High Court formed the view that demand for patented article in Pakistan is not being met to an adequate extent and on reasonable terms, the patentee may be ordered to grant licence on such terms as the Central Government or the High Court, as the case may tie, think just or if the Central Government or the High Court is of the opinion that the demand will not be adequately met by the grant of licence, patent may be revoked by order of the Central Government or the High Court. It further provides that an order of revocation shall not be made before the expiration of four years from the date of the patent or if patentee gives satisfactory reason for his default. It has also been provided that the demand for a patented article shall not be deemed to have been met to an adequate extent and on reason able terms: (a) If by reason of default of the patentee to manufacture to an adequate extent and supply on reasonable terms the patented' article or any part thereof, which are necessary for its efficient working or to carry on the patented process to an adequate extent, or to grant licences on reasonable terms, any existing trade or industry or the establishment of a new trade or industry in Pakistan is unfairly prejudiced; or (b) If any, trade or industry in Pakistan is unfairly prejudiced by con ditions attached by the patentee to the purchase, hire or use of the patented article or to the use of work of the patented process. It may also be pointed out that section 23 of the Act provides that at any time not less than four years after the date of a patent grant under the Act, any person may apply to the Central Government for relief under the above section on the grounds that the patented article or process is manu factured or carried on exclusively or mainly outside Pakistan. Upon receipt of such an application and after holding an inquiry, the Central Government, inter alia may order patentee to grant a licence to the applicant, which may be a licence exclusive to him or otherwise as the Central Government may indirect. This also seems to be akin to a compulsory licence. The other countries in their relevant enactments have not only included the above grounds, but have expended/extended the same. For example, under section 48 of the English Patent Act, in addition to the above grounds inter alia, the following grounds are provided: (i) Where the patented invention is capable of being commercially worked in the U. K., but it is not being so worked or is not being so worked to the fullest extent, that is; reasonably practicable (S. 48(3)(x)). (ii) Where the patented invention is capable of being commercially worked in U. K., that is, being prevented or hindered from so worked (S. 48 (3)(b)(ii)); (iii) That by reason of the refusal of the proprietor of the patent to grant a licence or licences on reasonable terms (S. 48 (3) (d)). (i) a market for the export of any patented product made in the United Kingdom is not being supplied; or (ii) ; or (iii) . It may be pertinent to point out that there seems to be a new trend among some countries to further extend the scope of compulsory licensing by conferring the power on the Government, to make any patent or class of patents subject to compulsory licensing; for example, under section 97 of the Indian Patent Act, 1970, the Central Government of India has been empowered, if it is satisfied in respect of any patent or class of patents in force, that it is necessary or expedient in the public interest, that the compulsory licence should be granted any time after the sealing thereof to work the invention or the inventions, it may make a declaration to that effect in the official Gazette. Thereupon, any person interested may apply to the Controller for a compulsory licence. In this regard, reference may also be made to section 51 of the English Patent Act, 1977. 11. It will not be out of context to dilate upon patent with the endorsement of the words, "Licences of Right" referred to hereinabove in para. 9, as provided in section 46 of the English Patent Act, 1970. In England, a patentee has the option voluntarily to throw. his invention open to anyone who wishes to obtain a licence on terms to be agreed with him or in default of agreement on terms to be settled by the Con troller. If he voluntarily opens the invention, he gets the benefit of paying half patent fee plus the advantage that an application for revocation on the ground of abuse would not be easily entertainable. The Controller has also the option while dealing with an application for revocation of patent on the ground of abuse to throw the invention open to anyone and order the above endorsement on patent. A licence of right can be claimed by an interested person like a compulsory licence. 12. It may be pertinent to point out that in some of the countries, like Albania, Algeria, Bulgaria, China, Czechoslovakia, East Germany, Hungary, Poland, Romania, the U. S. S. R. and Yugoslavia, a system known as "Grant of Certificate of Authorship" is obtaining. In U. S. S. R. under section 23 an invention has the option to request for: (a) recognition of his authorship‑ of the invention and the grant of exclusive right to it (in which case a patent will be granted) or: (b) recognition of his authorship of the invention and the grant of the rights and privileges provided by law in force, the exclusive right being transferred to the State (in which case an inventor's certificate will be granted). The main features of the latter form of protection are; (i) the right to use the invention belongs exclusively to the State; (ii) state assumes the responsibility for utilization of the invention; and (iii) the inventor is entitled to remuneration and to other prescribed rights and privileges. However, it may be pointed out that in U. S. S. R. an inventor's certificate is granted in respect of any invention, which is on account of the inventor's work in a state co‑operative or social enterprise or which pertains to chemical. process, any form of nuclear energy, pharmaceutical, food substances, cosmetic product;, diagnosis or treatment of human or animal diseases, new varieties of agricultural crops, new breeds of fur- bearing animals, new species of mulberry silkworms, etc. and any invention classified as secret and supplementary invention, if the main invention is the subject of an inventor's certificate. It may be observed that in the Communist block countries where private entrepreneur is not generally permissible, the compulsory licensing is of no significance within such countries, but it may have relevancy in between the States. 13. The rationale behind compulsory licensing in case of copyright is to make available on reasonable terms literary, dramatic, musical or artistic wore, which has been published or performed, to the public at large, in case of failure on the part of the owner of the copyright of such work, whereas, the object of compulsory licensing in patent is that when a patentee fails to put his invention into practice in the state within a prescribed period, or fails to exploit the invention to the full extent, inter alia, compulsory licensing is resorted to enable the community to obtain the benefit of the invention. The compulsory licensing has also beep used as a check on a patentee's power to act as a monopolist. In the U. S. A., there is no compulsory licensing system as such but the Courts while acting under the Anti‑Trust laws, i.e. "Sherman Act of 2nd July, 1890" and "Clayton Act of 5th October, 1914" press into service granting of compulsory licences. However, the statistics indicate that the compulsory licensing has not been pressed into service frequently in developed countries. For example, in the year 1958‑60 in the United Kingdom there were 12 applications for compulsory licenses i.e., seven for food or medicines, 5 others, of which, two were later abandoned, two succeeded and one was refused. (See footnote 45 at page 303 of Patent for Inventions by T. A. Blanco White, 3rd edition), whereas, between 1959 and 1968 in the United Kingdom applications for compulsory licences an average of 1.5 were filed per annum under the general provision. Only two were granted for the whole period. Applications fur the special food and drug provision, an average of 4.5 per annum were filed. (See footnote 15 of Intellectual Property Patents, Copyright Trade Mark and Allied Rights by W. R. Cornish, 3rd impression, 1983). It may be pointed out that the omission of the provision relating to medicines and food under the United Kingdom Patent Act; 1977 may even further reduce the number of the applications, which may be filed its that country. It may be observed that in spite of the fact that the number of the applications for compulsory licences filed and granted seem to be very meagre, but the provisions for the same are not entirely ineffective as the possibility of an application under them, does influence the conduct of a patentee. It may also be stated that, inter alia, the object of the European Economic Community (E. E. C.) is to provide free access to the goods and service to its member States. In the Commission of the European Community's paper entitled "Television Without Frontiers, The Green Paper on the Establishment of Common Market for Broadcasting, Specially by Satellite and Cable", dated 4th June 1984, the Commission has recommended that a statutory licence should be adopted throughout the community. 14. The compulsory licensing system may not be of great significance to the developed countries, particularly in view of the close collaboration in the economic field in the form of E. E. C. referred to hereinabove, but there cannot be two opinions that it is very important for developing countries, which have little intellectual property of their own to exploit on account of the fact that they inherited protectionist law from colonial days, with the result that the foreign patentees and foreign owners of copyrights in consideration of importing their inventions and the copyright works steam off meagre resources in the form of royalty payment., etc. Furthermore, on account of reduction in the value of the currencies of the developing countries as compared to the developed countries, it has become prohibitive to import technical know‑how or the copyright works because of prohibitive cost. In order to meet the above situation, the developing countries have been striving to have free access to technical and educational material in order to attain self‑sufficiency. 15. In my humble view, this Seminar may make the following recommendations: (i) That the original Stockholm Protocol of 14th July, 1967 pertaining to developing countries permitting them to grant compulsory licences to their nationals or persons domiciled in respect of copyright works owned by nationals or persons domiciled in developed countries be ratified by the developed countries in its original form; (ii) A protocol for the developing countries permitting to grant compulsory licences in respect of foreign patents on the line of the aforesaid Stockholm Protocol be adopted and be ratified by the developed countries; (iii) One of the main objects of the World Intellectual Property Organizations is to assist the developing countries in their develop ment. In order to achieve the above objective, its objects, inter alia, include rendering assistance to the developing countries for the purposes: (a) to improve the conditions of acquisition of foreign patented technology, that is, making those conditions more favourable to them than they ate today; and (b) to make it easier and cheaper for them to locate the technological information contained in patent documents. Whereas, in the field of copyright, the main objectives are to assist the developing countries, inter alia, to improve the conditions of acquisition of the right to use or enjoy the literary artistic works in which copyright is owned by foreigners, that is, making those conditions more favourable to them than they are today. The above objectives are commendable and are bound to yield good results. However, in my humble view, World Intellectual Property Organization may constitute a Pool or a Bank of patents, copyright works and allied intellectual property to be donated by the members developed countries for a specified period and the same may be transferred to the developing countries for a specified period through the scheme of compulsory licensing according to the capacity/requirement of the develop ing country concerned with the stipulation that patent or copyright work would not be, in any way, exploited to the prejudice or in competition with the patentee donors or, copyright donors or their assignees/licensees.