Transcript Copyright Term

Copyright Term
Lionel Bently
University of Cambridge
Plan
• General Rules: national, international,
regional
tendency to lengthen protection
variation for different subject matter
• Current Debates: sound recording
• Potential radical implications of a case-law
development in UK (in which a record
company lost….)
National Rules (historically)
• Statute of Anne 1710
– 20 years for existing books
– New books 14 years, and if author alive second term of
14 years
• The Literary Property Debate
- a perpetual right at common law
- succeeded in Millar v. Taylor (1769)
- rejected in Donaldson v Becket (1774)
• Copyright Act 1814 – life
• Copyright Act 1842
42 years or life plus 7
International Relations
(historical)
• Bilateral arrangements. In late 1830s,
Prussia refused to enter agreement with GB
until GB extended copyright term (which
occurred in 1842)
• Berne Convention on Literary and Artistic
Property 1886 (national treatment)
Berlin Revision 1908 (life plus 50)
Brussels Revision 1948 (obligatory)
Berne Convention (Paris 1971)
• Art 7: life plus 50
• Cinematographic works: or 50 years from making
available or, failing such an event, making
• Photographic works/works of applied art – at least
25 years from making
• Art 7(8): the term shall be governed by the
legislation of the country where protection is
claimed; however, unless the legislation in the
country otherwise provides, the term shall not
exceed the term fixed in the country of origin of
the work
Comparison of Terms
• Country A- life + 50; country B, life + 70
• Both in Berne
• Country B must apply ‘national treatment’
to works from country A
• But, if country B applies comparison of
terms, a work first published in country A is
protected in country B only for life +50
Despite Berne national terms
varied
• Continued variations prior to July 1, 1995
(date when EC harmonization was to have
been achieved):
Germany (1965): life plus 70
Spain: life plus 80
UK: life plus 50
International rules on related rights
Rome Convention (1961), Art 14:
performers: 20 years from fixation on phonogram
(or, if not, performance)
phonograms – 20 years from fixation
broadcasts – 20 years from broadcast
Geneva Convention for Protection of Producers of
Phonograms (1971), Art 4:
if a ‘specific duration’ must be 20 years from
fixation or when first published
Regional Developments
• The European Community. Articles 28 & 30
of the EC Treaty.
• EMI v Patricia, C-341/87 [1989] ECR 79
• Harmonisation…
Directive
• Council Directive 93/98/EEC of 29 October 1993
(as amended by Council Directive 2001/29/ EC of
22 May 2001)
• ‘Upward’ Harmonisation
• Recital 5 – 2 generations/ lifespan
• Recital 6 – offset world wars
• Recital 9 – due regard for established right
• Recital 10 – high level – ‘fundamental to
intellectual creation’
Directive
• Literary or artistic works (including
‘original’ photographs): life plus 70
• Cinematographic or audiovisual works: 70
years post mortem principal director, author
of screenplay, author of dialogue and
composer of music specifically created
• Related rights: art 3. 50 years from…
• Comparison of terms: art 7
Implementing the Directive
• Existing copyright terms – no shortening (eg UK
rules on unpublished works remaining protected
until 2039)
• Revived copyrights: art 10(2) specified terms
apply ‘to all works and subject matter which are
protected in at least one member state’ on 1 July
1995. Impact of rule on non-discrimination:
Collins v. Imtrat.
• No retrospective effect as regards acts of
exploitation performed before July 1, 1995
• Reliance interests
TRIPs (WTO Agreement 1994)
• National treatment – art 3 (‘subject to the
exceptions already provided in…the Berne
Convention’)
• Most favoured nation – unless privilege ‘granted
in accordance with the provisions of the BC’,
deriving from a prior notified agreement etc
• Minimum standards: Art 9(1) (Berne compliance),
Art 12 (where calculated other than by reference
to life), Art 14(5) (performers/phonograms 50
years from fixation or performance; broadcasts 20
years)
Developments in the US
•
•
•
•
1909 Act: 28 years + 28 years
1976 Act: Life plus 50. Works for hire: 75 years
Sony Bono Act 1998: life plus 70 or 95 years
Eldred v Ashcroft (2003) 123 S Ct 769
(constitutional challenge: not ‘promoting’ science
if given to existing works; not ‘limited times’.
Challenge rejected.)
Post-TRIPs
• WIPO PPT (1996), art 17 (performers: 50 years
from fixation; phonograms 50 years from
publication or, if not published within 50 years of
fixation, 50 from fixation )
• Bilateral pressures to increase term
• US-Singapore Free Trade Agreement, Chile,
Australia
- life plus 70
- Sound recordings – 70 years
Latest Pressures
• Record Industry Lobbying in Increase Term
for Sound Recordings
UK Gowers Review of Intellectual
Property; Report by CIPIL on Economic
arguments; Select Committee on Media,
Culture and Sport, 5th Report (2007)
EC Study on Recasting Copyright by
IVIR (Hugenholtz et al)
Arguments in Favour of Increase
• Increase incentives to produce recordings
• Recordings will go out of copyright: industry will
‘lose’ with negative effects on performers,
employment and investment
• Need extension to justify investment in
digitisation/preservation
• Harmonisation with US necessary to avoid
cultural distortion
• In Britain’s interests as chief record producing
nation
Industry Economic Evidence
• BPI commissioned PriceWaterhouseCooper
• IFPI commissioned Stan Liebowitz
Drew on Landes and Posner’s ‘Indefinitely
Renewable Copyright’ 70 University of
Chicago Law Review 471 (2003) to argue
for ‘congestion externalities thesis’
Argued that in case of sound recordings
incentive effect of change from 50 to 70
CIPIL: Review of the Economic
Evidence (2006)
• No economic justification (in terms of incentives)
for applying extension of term to existing works
• Drew on ‘17 Nobel prize-Winning Economists
Brief’ from Eldred to argue that incentive effect
extremely limited
• Rejected Liebowitz assertion that ‘might have’
special effect because many are just underincentivised
• Followed Lemley’s analysis of ‘Ex Post’
Justifications 71 U. Chi. L. Rev. 129, 141- 48
(2004)to reject Landes and Posner thesis
• Doubted balance of trade argument
IVIR: Recasting Copyright
(2006), Ch 3
• Distinguished ‘investment’ rights from other
rights
• For performers, average lifespan 75-80 yrs
• Phonogram producers: purely investment
rights. Compared with other investment
rights, already very long (para 3.3.4.4)
• Sympathetic to moral rights for performers
lasting life time
2007…
• Continued Lobbying by IFPI etc
• Select Committee on Media Culture and
Sport (May 2007): favours increase on
‘moral’ rather than economic grounds
(“unfair that performers do not enjoy the
same rights as composers”); arguments
relating to ‘average lifespan’ of performers.
• New Study at EC level…
Parallel Development
• Sawkins v. Hyperion Records [2005] 1 W.L.R.
3281, 3295:
• LS created “performing editions” reconstructing
four works of a seventeenth-century composer,
including the “figuring of the bass,” additions of
“ornamentation,” and performance directions
• H reproduced and distributed copies of
performances made from the scores
• Issue: whether LS had created original musical
work attracting copyright….
Sawkins v Hyperion (CA)
• “[T]he essence of music is combining sounds for
listening to. …There is no reason why … a
person's spontaneous singing, whistling or
humming or improvisations of sounds by a group
of people with or without musical instruments
should not be regarded as "music" for copyright
purposes.”
• Originality required merely skill and labour, and
was evident here (even though LS was not trying
to create something new)
The Implications of Sawkins
• Virtually every performance will result in original
musical work…
• ..and be protected by copyright if recorded in
writing or otherwise… (eg embodied in
commercially distributed sound recording)
• …so will obtain full copyright term (life plus
seventy)..
• ..and entitle owner to prevent reproduction,
distribution, playing in public etc…
• ..and be assignable e.g. to record company