Transcript Testing

Term of protection
Prof. Tanya Aplin
King’s College London
[email protected]
Importance of term
• Determines for how long authors/owners
can exercise their exclusive rights
• Determines when works will enter the
public domain
• Historically trend (at least in common law
systems) of increasing term
Policy considerations
• Underlying philosophy of ©/authors’ rights
• Post mortem auctoris calculation vs fixed
term
• Unpublished works?
International
• Not until Brussels Revision 1948 of Berne
that 50 pma minimum right
• NB - Comparison of terms - Art 7(8): “the
term shall be governed by the legislation of
the country where protection is claimed;
however, unless the legislation of that
country otherwise provides, the term shall
not exceed the term fixed in the country of
origin of the work”
European Union
• What led to the Term Directive?
• Divergences in term for authorial works but
esp. related rights
• Not solved by ‘exhaustion of rights’
principle - see EMI v Patricia [1989] 2
CMLR 413 (ECJ)
Term Directive
• Term for literary and artistic works - 70pma
• Work of joint authorship - calculated from death
of last surviving author
• Anonymous/pseudonymous works - 70 years from
when work lawfully made available to public [also
for collective works if no natural persons are
authors]
– See Art 1
• Doesn’t deal with moral rights - Art 9
Term Directive
• Cinematographic works - Art 2
– Principal director must be an author
– Term expires 70 years after death of the last of
the following persons to survive whether or not
co-authors: principal director, author of
screenplay; author of dialogue; composer of
specifically created music
• Photographic works - 70 pma if original
Term Directive
• Comparison of terms where author of work
is not a Community national - see Art 7(1)
• Applies to works still in copyright in at least
one Member State as at 1 July 1995 - Art 10
– Without prejudice to acts of exploitation
performed before that date
– Member states shall adopt necessary provisions
to protect acquired rights of third parties
Term Directive
• Revival of copyright - See Art 10 in combination
with principle of non-discrimination
– See Phil Collins Case 92/91 [1993] 3 CMLR 773
– Principle of non-discrimination applies even where
author was dead at time EEC Treaty came into force Land Hessen v Ricordi Case C 360/00 [2004] 2 CMLR
20
– Member states obliged to protect rights of third parties;
discretion as to how to do so - Butterfly Music C-60/98
[2000] 1 CMLR 587
– Protection at relevant date in any Member State - Sony
Music v Falcon [2009] ECDR 12
Term Directive amendment 2011
• Extends term for performers and sound recordings
from 50 to 70 years
• Accompanying measures to soften the blow
• 1) Where phonogram producer does not exploit
sound recordings performer can terminate contract
• 2) Sound recording producer must put aside 20%
of revenue from distribution, reproduction and
making available sound recordings for benefit of
performers whose performances were assigned for
a lump sum - collecting societies to distribute
Term Directive amendment 2011
• 3) Where performers transfer their exclusive rights
on a royalty basis to sound recording producer clean state for additional period (ie unencumbered
by contractually defined deductions during the
period)
• Musical compositions with words given a single
term of protection - calculated from death of the
last surviving persons (author of lyrics or
composer of music - whether or not coauthors)
United States
• 1909 Act - fixed term 28 + renewable for 28 years
• 1976 Act - moved to pma model - 50 pma; fixed
term (75 yrs publication or 100 yrs creation) for
certain works without identifiable author
• Sono Bono Copyright Term Extension Act 1998 additional 20 years
• Constitutional challenge to this Act - see Eldred v
Ashcroft 123 S. Ct 769 (2003)
Eldred v Ashcroft
• Pfs - corporations, individuals that relied for their
livelihood on works in public domain
• Challenged constitutionality of CTEA - argued
contrary to First Amendment and to Copyright
clause
• “The Congress shall have power…To promote the
Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the
exclusive right to their respective Writings and
Discoveries” Art 1, s8 US Constitution
Eldred v Ashcroft
• US Supreme Ct (majority) - constitutional
• ‘limited Times’ means confined not unalterable;
extension consistent with previous congressional
practice
• Rational exercise of legislative authority
– EU Directive
– Encourage restoration and dissemination of works
– System of copyright promotes progress of Science - for
congress to decide
• Powerful dissents
Golan v Holder 132 S Ct 873
(2012)
• Pfs orchestra conductors, musicians, publishers
who previously enjoyed works in public domain
• Pursuant to TRIPS, Congress extended/restored
copyright to pre-existing foreign (Berne) works
that had not been granted U.S. copyright because:
– US did not protect works from country of origin at time
of publication
– US did not protect sound recordings fixed before 1972
– Author failed to comply with statutory formalities
Golan v Holder
• Protection for third parties:
– Reliance parties could continue to exploit a restored
work until owner gave notice of intent to enforce; after
that could exploit for one year
– Anyone who created a derivative work based on a
restored work could exploit this provided reasonable
compensation paid to copyright holder of first work
• Argued before Sup Ct that contrary to First
amendment and Copyright Clause
• Majority held constitutional; followed their
reasoning in Eldred v Ashcroft