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 fixationbroadcasts – 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 under-incentivised

• 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