Nicola DAGG and Sarah MATHESON, Deputy Reporters General
John OSHA, Kazuhiko YOSHIDA and Sara ULFSDOTTER
Term of copyright protection
The limited term of copyright protection (“Term”) is the most striking element whichdistinguishes copyright as an intellectual property right from a tangible property right. Withthe political discussion about copyright protection, ongoing, one of the issues raised iswhether there should be a change to the Term. Some argue that the Term is currently toolong, and that it no longer serves its purpose in that it stifles rather than encouragesinnovation. Others advocate an everlasting copyright and rely e.g. on equal treatment withtangible property and a natural everlasting right to one's own creation. Others favour theexisting Term as balanced.
For the avoidance of doubt, Q235 has been confined to Berne Convention copyright works,and has excluded related (neighbouring) rights and the various international instrumentsand EU Directives delineating this protected subject matter.
Previous Works of AIPPI
AIPPI has not previously studied Term of copyright protection as a stand-alone question, asit seeks to do in Q235. However this issue, as well as the broader issues of generalcopyright protection, have been considered in the context of Forum Session III 'Copyrightand Digital Rights Management: Moving Beyond protection?' at the AIPPI Forum Singaporein 2007.
International obligations as minimum standards
The term of protection of copyright is governed by international treaties, which have setminimum standards of protection. These are the Berne Convention amended in 1979,TRIPS 1994 and the WIPO Copyright Treaty 1996. Any consideration of a reduction orextension of Term of protection of copyright therefore needs to be considered and debatedwithin the framework of these international treaties and within the confines of theobligations that they impose. There are no international proscribed upper limits of Term ofprotection.
The Berne Convention 1979 (BC) only protects literary and artistic works as defined inArticle 2(1) (Berne works) and does not protect related rights. Article 7(1) BC specifies aminimum Term of protection. This is two pronged: (1) a term based on the life of the authorplus 50 years post mortem auctoris (pma) for the majority of works and (2) a fixed term of50 years, in the case of entrepreneurial works and certain type of authorial work, or aminimum 25 years for photographic works and works of applied art.
TRIPS resulted from the recognition of a need to harmonise the different substantive andprocedural laws relating to intellectual property rights existing in the GATT (GeneralAgreement on Tariffs and Trade) Member States, and to ensure that “measures andprocedures to enforce intellectual property rights do not themselves become barriers tolegitimate trade”. TRIPS incorporated the Berne Term of protection under the doctrine of‘incorporation by reference’; it was decided not to impair existing obligations of the BC butto add so-called ‘plus elements’ where a body of law to build on already exists. ThereforeArticle 9(1) TRIPS incorporated the Term of protection provisions of Article 2 BC. WTOmembers are to comply with these provisions even if not party to BC. Furthermore TRIPSadded computer programs and databases to the list of protected works within the meaningof the BC for the protection of literary works.
TRIPS also introduced a specific provision in relation to Term of protection (Article 12). Thisleft unchanged the Term based on the ‘Life of Author' plus 50 years pma, and the Term of25 years for photographic works and works of applied art. Article 12 however introduced anumber of ‘BERNE +’ elements in that: it extended protection to juridical works, it made afixed Term mandatory for cinematographic works, and in relation to anonymous andpseudonymous works, specified that the Term of 50 years was to be calculated from thearguably narrower, “publication” of the work instead of the date when the work is “madeavailable to the public” (BC Art 7(2,3)).
The WIPO Copyright Treaty 1996 like TRIPS incorporates Berne Term as a basic standard(Article 1(4)). However unlike TRIPS it does not have a specific provision in relation to theTerm of protection. Like TRIPS it adds computer programs and databases to the list ofprotected Berne works.
Term of Protection has moved in an upward direction
A brief analysis of the copyright laws of the UK, France, Germany and Brazil, reveals thatdomestically Term appears to have been adjusted in an upward direction. In the UK theStatute of Ann 1710 introduced a term for ‘old’ books of 21 years from publication, and for‘new’ books 14 years. By 1988 term had been extended to Life of Author plus 50 years. InFrance the Law of 1793 introduced a Term of the Life of Author plus 10 years that becameLife of Author plus 50 years by 1957. In Germany the move was from a term of Life ofAuthor plus 30 years in 1871, to plus 70 years by 1965. In Brazil too the move has beenfrom a Term of Life of Author plus 50, to plus 60 and is currently Life of Author plus 70.
It is of interest that even after the international treaties established normative standards inrelation to Term, the EU and the US sought ways to obtain "TRIPS + " standards ofprotection for Term:
(1) EU Council Directive 2006/116/EC – increased term of protection for Berne works toLife of Author plus 70 years/70 years after the work is lawfully made available to the public;Nevertheless, for example in the UK a limitation on the term of protection for artistic workswhich have been exploited by an industrial process has limited the term of protection forcopyright artistic works such as sculptures and works of artistic craftsmanship which havebeen industrially exploited to 25 years.
(2) The US Sono Bono Copyright Term Extension Act 1998 (CTEA) – retroactivelyincreased (inter alia) Term to Life of Author plus 70 years, from 50 years. Furthermoreleverage was applied through free trade negotiations to other countries to increase term.
Both instances sparked strong arguments against copyright term extension – in the lattercase from a group of 17 very distinguished economists. The economists concluded that theCTEA’s longer copyright for new works provided at most very small additional incentive fornew creation.
Japan too has introduced "TRIPS +" standards of protection but only in relation to'cinematographic works'. These have been increased from the Berne/TRIPS requirement of50 years, to 70 years following the making public of the work or the creation thereof if thework has not been made public within 70 years following its creation. In relation to all otherworks Japan has maintained the Life of Author plus 50 years term. However the 'IPStrategic Program 2012' of the Headquarters for IP Strategy of the Government of Japan,provides for the possibility of studying an extension of Term and the adoption of anyconsequent measures, as a short or medium term issue.
It is therefore indeed justifiable for AIPPI to question whether this continued increase inTerm of protection is correct/acceptable, and whether with no upper limits imposed bytreaty obligations there is a concern that ever increasing Terms will continue to beunilaterally imposed.
Rationale of Protection – "Adequate” Standards of Protection
TRIPS established what the negotiating parties deemed “adequate” standards of protectionin relation to IPRs, including in relation to the Term of copyright protection: "Recognising tothis end, the need for new rules and disciplines concerning (…) (b) the provision ofadequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights". AIPPI is interested in exploring what “adequatestandards” of protection are/should be in relation to Term of protection.
The Term of protection of the BC based on ‘the Life Author plus 50 years pma’ wasintended to provide protection for the author, and to enable the first two generations of hisor her descendants to benefit from the exploitation of the work. This rationale may betraced back to the strong influence of continental European copyright law regimes (so-called “droit d’auteur” systems), in which the personal creation of the author was regardedas crucial for copyright protection. In such systems, authors retain much greater and lastingties to their work compared to the Commonwealth or the US copyright systems. Forexample, the French system provides authors with an inalienable minimum moral rightagainst mutilations of the work. Outside Europe the Brazilian system too considers moralrights to be separate rights, distinguishing them from the economic rights of authors.
In respect of economic rights, copyright regimes like the German system guarantee theauthor a non-waivable right to an adequate remuneration for all economic rights used,which will usually result in a claim for the author to participate in the revenue generated bythe exploitation of the work. In such author-centred copyright regimes, the calculation of theTerm according to the person of the author (and not according to work related parameterssuch as publication or registration) seems a natural thing to do. Ricketson and Ginsburg intheir authoritative work on the Berne Convention (International Copyright and NeighbouringRights, 2nd edition 2006, 9.09) argue, however, that the drafters of BC never clearly justifiedwhy, and how the Term provisions came to be adopted, as not all the BC member statesfollow the aforementioned continental Europe approach. It is generally understood however
that the two bases of protection recognize the different interests and policy issues arising inrelation to different categories of work. The EU Term increase imposed by the Directive2006/116/EC was justified (inter alia) on the basis that the average lifespan in theCommunity has grown longer, to the point where ‘Life of Author plus 50 years pma’ is nolonger sufficient to cover ‘two generations’. Here, it seems that the continental rationalebehind a calculation pma prevailed. The Court of Justice of the European Union (CJEU)has only recently held in Luksan/van der Let
(Judgement of 9 February 2012, C-277/10; acase involving the rights of a principal film director in a movie) that “copyright protectionwas crucial to intellectual creation”, thus following the “droit d’auteur” approach, whichseeks to guarantee authors a high level of protection.
In Japan, the increase of Term solely in relation to cinematographic works, is a recognitionof the industry's economic importance. The Report by the Copyright Section of the Councilfor Culture in the Agency for Cultural Affairs ("CS Report") states that the Japanesecinematographic works such as movie, animation, and game software, are popular inforeign countries and are expected to grow as industries in Japan and to expand asinternational businesses in the future. Cinematographic works hence have to be accordedcommensurate level of protection as other Berne works.
However the CS Report outlines that it is as yet uncertain whether either the EU or the USrationales that has led to "TRIPS +" Term increases for other works, should be applicable tothe Term of extension of copyright protection in Japan. The reasons given are that generalTerm extension has both merits and demerits for the development of culture, it is stilluncertain whether the extension is and will be an international standard, and it is alsouncertain whether international harmonisation in relation to Term is necessary.
As was considered by AIPPI in Q216 and Q216B (Exceptions to copyright protection andthe permitted uses of copyright works in the hi-tech and digital sectors), in the Digital/Information Age that we operate in today, there is an acknowledgment of the growingtransiency of a considerable number of protected copyright works in certain areas. They arealso less easy to define; many intellectual creations result from the efforts not of one‘author’ but of several or even a multitude of authors (peer produced software, or mash-upsand other derivative-like works). It is arguable that therefore for such types of works weneed time/technology age appropriate Terms of protection in order to enable theexploitation of the full potential that new technologies and the digital marketplace have tooffer. But for other types of works, the parameters do not seem to have changedfundamentally. Still a lot of works have a strong personal link to the author(s), e.g. novels,theatre plays, fine art, movies, music; such strong ties of the author to his or her work maystill justify a calculation of the term linked to the person of the author and not the work itself.
This leads on to the question of how frequently these Terms should these be assessed andrevised and what mechanisms should be introduced to enable this. Indeed in Japan it is feltthat the Japanese copyright system generally should be adjusted to the digital and networkera, before Term is adjusted.
There is a need to consider for whom the standards have to be adequate. Most copyrightregimes accept copyright to be an (intellectual) property right, which is in general protectedagainst expropriation. But the use of property may be regulated by law in so far as isnecessary for the general interest. Traditionally, besides this property interest of theauthor/creator, an interest of the general public as the consumer of the copyright works hasbeen recognized, which may limit copyright to a certain extent, also in respect of the Term.
The emergence of the ‘commercial providers’ i.e. the new generation of international onlineproviders and webcasters, emanating as a result of the development and convergence ofweb-based and online broadcasting platforms, is increasingly documented. What Term of
protection is adequate to incentivise them? Not a long term, as this arguably stifles thecreation of new industries that generate wealth and added value, but one that is in line withthe ubiquity of an on line service. In Q216 it was recognised that copyright protectionrequires a true balance between the legitimate interests of all parties involved.
Additionally in recognition of the augmenting economic importance of copyright works,there is an increasing need to take economic arguments/evidence into account whenconsidering adequate standards. In relation to authors/creators there is a need to questionwhether there is a social and economic justification for extant Terms of protection, whichdelay the entry of an individual's personal creation into the public domain, without any clearbenefits in terms of incentives or rewards. It is equally necessary to consider if anyextant/increased Term (which boosts the income of authors and right holders) alsoincreases the costs to commercial producers, not only by the additional payment but alsoby the costs of collection (“deadweight costs”). If commercial producers have fewer costs,the question has to be asked, if such cost savings are passed on to the consumers; ticketsfor a Shakespeare and an Arthur Miller play or the CD price for a Mozart or a RichardStrauss symphony do not differ in a lot of cases.
Finally, it has to be taken into account that an economic justification is not the sole driver ofcopyright protection and the Term. This is in particular true for all copyright systems whichrecognize the personal link between the author and his or her work to be crucial forcopyright protection. This will justify a Term, while the author is alive. After the author’sdeath, the very personal link to the works starts to fade away. But it can also serve as ajustification for a protection for another two generations after him or her, because thesegenerations usually can carry on the (fading) personal link, as they will still have known theauthor. From the third generation, the personal link seems to become more and moredistant.
Nevertheless, some voices also advocate a perpetual copyright. The argument is mainlydrawn from the right to equal treatment with tangible property, which has no limited term ofprotection. Others advocate at least a perpetual moral right (e.g. protection againstmutilation, right to be named), as the work will then always have a sufficiently strongpersonal link to the author.
Reduction of Term of copyright protection
If a case is made that it is desirable to reduce extant Terms, one should consider how thiscan be achieved within the boundaries of the aforementioned international obligations.
Would it be possible to ‘carve out’ from the main body of Berne works that are currentlyentitled to ‘Life of the Author plus’ Terms, works that will receive shorter duration ofprotection?
The creation of a shorter Term of protection is facilitated when one is creating a ‘new’copyright work as can be evidenced by the proposed new German ‘Ancillary copyright’ fornews publishers, providing them with the rights in published news material that they will beable to enforce independently of authors. It is proposed that the Term of protection of thisancillary copyright will be for 1 year following the publication of the news material inquestion (Section 87g (2) of the draft Bill).
If one were able to operate outside the boundaries of the international treaties, one coulddiscuss abandoning the ‘Life of Author plus’ as an increasingly inappropriate basis fordetermining Term, and having instead a fixed term for all works. Several reasons are being
put forward to support this proposition. It is recognised that in this digital age, especially inrelation to ‘new works’ in (computer generated works, peer-produced software, mash-upsand derivative-like works, wikis to name but a few) the ‘Author’ is difficult to identify, as isthe Author’s contribution. For other “classical” works, however, this problem does not exist.
The internet and widespread availability of software for (re)creating digital content greatlyincreases the number of works in the public domain. We have entered an era in whichmixing or mashing up become a normal way to interact with works/create new works,whether in the realms of fine arts or entertainment, for a large group of users. A differentargument is based on the fact that the current regime serves to ‘lock up’ content; there isevidence that Authors’ descendants are acting to suppress uses of works of which theydisapprove, such as the heirs of James Joyce and Samuel Beckett. It should be discussed,if such user interests in freely using and accessing works should be fostered by significantlycutting down the Term or if the general property right of the author only justifies less drasticsolutions, e.g. through exceptions and limitations. Another argument which was based onthe fact that Authors are dead but their heirs or the owners of the copyright may be difficultor even impossible to identify or find, is to some extent now being addressed byInstruments in relation to ‘Orphan Works’ such as the EU Orphan Work Directive2012/28/EU and Article 67 of the Japanese Copyright Act No.48 of 1970 re. licensing ofOrphan Works.
The question is whether an optimum Term can be quantified, and if so whether this can beachieved by economic analysis alone. There have been several attempts over the years atarriving at an optimal figure for copyright Term, and all of them are heavily disputed. In2007 Pollock estimated that a socially optimal copyright duration is about 15 years, whenany increases are applied retroactively. To arrive at this figure Pollock traded off the socialvalue of new works that a term extension would generate against the negative value ofexisting works that will fall into the public domain later. In November 2012 the RepublicanStudy Committee (RSC) proposed a reduction of copyright term to 12 years for all newworks, with various renewal periods but with an upper limit of 46 years of copyrightprotection. Interestingly, the day after the brief was published the RSC issued a statementretracting it with the statement: “Yesterday you received a Policy Brief on copyright law thatwas published without adequate review within the RSC and failed to meet that standard.
Copyright Reform would have far-reaching impacts, so it is incredibly important that it beapproached with all the facts and viewpoints in hand”.
Commercial Consequences of a reduction of Term of protection
It is indeed important that any consideration of the reduction of Term of copyright protectionis carried out within the confines of a commercial impact assessment and an evidence-based approach.
Whilst there is no doubt that copyright stimulates the creation of creative content such assoftware, books, newspapers and periodicals, scientific publications, music, films,photography, visual arts, video games or software - in today’s world there is a potential foradded-value industries on top of existing media. For example in a world where movies,television shows and books that are 30 + years old were available in the public domain, oneis likely to see new industries crop up to offer a new experience on top of this media.
Historically in the UK a reduction of Term provided a stimulus to increased productivity.
When the Statute of Anne in 1710 provided the first and significant reduction of copyrightterm from perpetual copyright under common law to a fixed term, there was a developmentof a new low-cost and high-volume sales market as works that fell out of copyright becameaffordable for the first time to a whole new body of consumers. Interestingly here too there
was an instance of an increased production of work drawing upon the existing literarycanon. In today’s world, however, end of Term has not always meant lower consumerprices, as may be seen in the pricing of CDs.
In respect of the economic value of protection, it should also be noted that protections mayincentivise authors and heirs, but in particular publishers and other exploiters to care andfoster the work they own the rights for. As with tangible property, which is no longer ownedby anybody, copyright works can get into a neglected status. Maintaining and caring forworks can keep them alive for the public. For certain types of works, such as modernclassical music, a long term seems to be necessary anyway, since building up thereputation of the work and/or the author may even take more than the author’s lifetime.
Also, Ginsburg and Ricketson in their reflections about a correct Term point out that manypublishers, for instance, work on a basis that their less successful works will be subsidizedor offset by the more profitable ones (ibid 9.08). They may lose this culturally importantoption if cross-subsidies are no longer possible due to a shorter Term.
Finally, such economic considerations need to be balanced with the recognized propertyright of the author or right holder, not only in “droit d’auteur” countries. As Walter puts it: “Inthis context, it should be clearly kept in mind that the author, under normal circumstances,is not able to earn enough to make a considerable fortune during his lifetime, which hecould bequeath to his heirs. … From this perspective, the source of income itself must beheritable at least for two generations of 35 years each.” (Walter in Walter/von Lewinski,European Copyright Law, 2010, 8.1.11).
Extension of Term of copyright protection
The argument of in favour of a perpetual copyright is mainly drawn from the equation ofcopyright with tangible property. Authors have the right to be treated equally with propertyowners, which enjoy a perpetual right. It can be discussed if tangible rights and copyrightare sufficiently comparable, in particular because the use of tangible property is mutuallyexclusive (no use possible by two parties at the same time), while copyright works mayusually be used simultaneously by many. Other suggestions (e.g. Landes and Posner,2002) favour a perpetual copyright, but with a short initial Term (20 years), linked to asystem of renewed registrations in order to keep economic incentive alive for such renewedworks of sufficient economic interest. This would return most of the works back to the publicdomain much earlier. Some copyright systems recognize a perpetual moral right, forexample protection against mutilation or the right to be named). The underlying idea is thatthe work will always have a sufficiently strong personal link to the author. A perpetualcopyright would require some kind of registration, as heirs will be more and more difficult tolocate; thus, registers like for tracking title in land would seem to be necessary for suchsystems.
The purpose of Q235 is to explore the issues raised in relation to Term of protection. The Groupsare invited to answer the following questions under their national laws:
Analysis of current law
Have the Berne Convention amended in 1979 (BC), TRIPS 1994 and the WIPO CopyrightTreaty (WCT) been ratified by your countries? Please provide your answer in relation toeach individual international instrument, and provide dates and details of ratification.
Have the minimal obligations in respect of Term of protection of copyright imposed by theseinternational instruments been implemented in your countries’ laws? By means of whichlegislation? Please respond in relation to each of RBC, TRIPS and WCT.
a) If the answer is no please specify (i) which obligations have not been implemented (ii)
give any reasons why this has not proved possible and (iii) whether there are anycurrent proposals for their implementation.
Do your laws provide for TRIPS + obligations with respect to the Term of protection?Please provide details of any legislation that imposes this, and specify whether it isDomestic or Regional legislation?
Have the Terms moved in an upward direction with ensuing revisions of your domesticlaws, or as a result of any obligations derived from regional laws? Please provide details.
Are there any current proposals for continued increases in Term of protection generally, orin relation to any specified categories of work? Please specify.
What is the existing rationale/justification under your laws for the existing Terms ofcopyright protection? In particular, is the rationale/justification a merely economical one orare other reasons given? Have there been/is there currently, any academic/judicial orgeneral criticism of this rationale? Are you aware of any economical, sociological or otherstudies justifying or criticizing the current Term?
Proposals for harmonisation
Groups are invited to put forward proposals for the adoption of harmonised rules in relation to Termof copyright protection. More specifically, the Groups are invited to answer the following questions:
In your opinion do the current Terms of copyright protection provide "adequate" standardsof protection? Is this protection adequate for all interested parties i.e. authors/commercialproviders/consumers? Please give reasons for your answer.
Do you think that there is a need for an upper limit on Term in international treaties? Pleaseprovide your reasons.
Would you like to see the Terms of copyright protection changed? If yes should thechanges take place within the confines of the existing international treaties? Please giveyour reasons.
If your answer to 8 is yes and you would like to see the current Term of protection changed,please indicate whether changes should take place in relation to all categories of work, oronly in relation to specific categories of work. If only in relation to specific categories ofwork, please specify which categories of work, and give your reasons for this choice.
Please list the factors or criteria that should in your view be used to arrive upon theoptimum Term of copyright protection for any specific work, or in general. What in youropinions would this optimum Term(s) be?
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