In many cases the remuneration or royalties received for a copyrighted work under compulsory license are specified by local law, but may also be subject to negotiation.
They also provide for the minimum requirements to be set when compulsory licenses are applied, such as that they must not prejudice the author's right to fair compensation.
[16] Though the compulsory license allows one to make and distribute physical copies of a song for a set royalty, the owner of the copyright in the underlying musical composition can still control public performance of the work or transmission over the radio.
According to Register of Copyrights Marybeth Peters, use of the section 115 license prior to the 1995 enactment of the Digital Performance Right in Sound Recordings Act was extremely rare, with the U.S.
)According to historian Adrian Johns, the idea of compulsory licensing "seems to have originated as a serious proposition in the 1830s, although predecessors can be traced back into the eighteenth century," and it was popular in the British anti-patent movement of the 1850s and 1860s.
Some Commentators have posited that it unjustifiably hinders WTO members’ sovereign prerogatives to issue compulsory licenses to pursue public policy objectives and remedy abusive conduct by entrenching impregnable safeguards for patentees.
Article 31 does not curtail the grounds on which a WTO member may issue compulsory licenses, nor does it dictate minimum substantive or evidentiary thresholds for such grants.
Furthermore, all procedural and substantive protections for patentees mandated by this provision are built around broad and general standards, such as “reasonable commercial terms and conditions,” “circumstances of extreme urgency,” “purpose,” and “adequate remuneration,” that afford ample flexibility in their implementation.
In our view, article 31 unequivocally enshrines into international intellectual property law the principle that compulsory licenses are a highly adaptable instrument that countries are free to tailor as broadly or narrowly as they deem appropriate for their domestic socioeconomic milieu.
It is this ample discretion that constitutes the normative core of the TRIPS compulsory licensing regime, not the relatively narrow safeguards that it affords to patentees.
"[27] At the 2001 Fourth Ministerial Conference in Doha, bolstered by swelling support from scholars and activists, a group of WTO members submitted a proposal to fundamentally reform articles 27 and 31 of TRIPS.
This was followed by a statement reaffirming the sovereign prerogative of WTO members to grant compulsory licenses and their “freedom to determine the grounds” on which they are issued.
(Doha Declaration ¶ 5) Expressing the key concern of the Doha Declaration, paragraph 6 accepted the difficulties faced by countries with insufficient pharmaceutical manufacturing capabilities in “making effective use of compulsory licensing under the TRIPS Agreement,” and it instructed the Council for TRIPS to develop an “expeditious solution.” (Expressing the key concern of the Doha Declaration, paragraph 6 accepted the difficulties faced by countries with insufficient pharmaceutical manufacturing capabilities in “making effective use of compulsory licensing under the TRIPS Agreement,” and it instructed the Council for TRIPS to develop an “expeditious solution.”).
[27] In 2003, after two years of contentious negotiations,217 the TRIPS Council adopted the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health [the “Waiver Decision”], under which it instituted a temporary “waiver” allowing WTO members to grant compulsory licenses free from the obligations imposed by articles 31(f) and 31(h) (General Council Decision, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc.
[27] On 17 May 2006 the European Commission's official journal published Regulation 816/2006,[30] which brings into force the provisions of the Doha Declaration.