Douglas Skilton

Douglas Skilton:

Intellectual Property Dissertation:

Increasing the duration of copyright from life of the author + 50 years to life of the author + 70 years was a mistake. Discuss.

Word count: 5632, including quotes, excluding footnotes, abstract and bibliography

Abstract

It is evident in light of the social, legal and economic justifications outlined by the EC in the 1993 Duration Directive, that the extended term of protection to life of the author plus 70 years for copyright works was a mistake. The main arguments put forward by the Council in the Directive do not stand up to scrutiny, providing merely an excuse for the imposition of longer ownership monopolies in copyright works. The cost creatively and financially for the consuming public and many authors, far outweigh any benefit that can be derived from yet another increase in copyright term.

© Douglas Skilton for life + 70 years

Introduction:

The question of the appropriate period of protection that ought to be granted to copyright works has long captured the attention of policy makers, legislatures, judges and commentators.[1] The law has sought to achieve a conciliatory stance with respect to this issue, balancing the interests of owners and the public’s access to authorial works. As Macaulay noted in his speech to the House of Commons when the Berne convention was being mooted, the main point on issue is ‘how long after an authors death the State shall recognise a copyright in his representatives and assigns, and it can hardly be disputed by any rational man that this is a point which the legislature is free to determine in the way which may appear to be most conducive to the general good’. Prior to the EC duration directive, the term of copyright in the UK and many other countries was set by the Berne Convention 1908, at life of the author plus 50 years after their death. It has been noted that copyright duration has always increased rather than decreased[2], and it is questionable whether this has served the wider public interest.[3]

The EC Duration directive preamble provides various justifications for the increase in copyright duration from life of the author plus 50 years, to life of the author plus 70 years. The Commission initiated the Directive, and along with the European Parliament and the Economic and Social Committee, provided reasons which ‘can roughly be divided into social, legal and economic’[4] justifications for the increase in term.

It is claimed that as certain Member States had enacted longer terms of protection, harmonisation was necessary to prevent distortions in completion and facilitate Art 28 EC, the free movement of goods and services between member states. Respect for the existing rights of member states is of fundamental importance to the community, and therefore the term should be harmonised upwards to the highest term offered in the Community.

Secondly, as European citizens are now living longer, the aim of the Berne Convention minimum term of protection, life plus 50 years, to provide for an author and two subsequent generations, was not being achieved. Finally, the commission stresses that the term extension was necessary to provide a high level of protection, since these rights are fundamental to intellectual creation, and further stresses that their protection ensures the maintenance and development of creativity in the interest of authors, cultural industries, consumers and society as a whole.

This essay will seek to critically analyse these justifications, with respect to the creation of new works and the revival of copyright in existing works, demonstrating that ‘neither the proposal in Europe nor its adoption was based on a careful analysis of the public benefit from an extended term’.[5] The cost in financial and creative terms for the consuming public and many authors far outweighs any benefit that can be derived from another increase in copyright term, strengthening the contention that the extension of the duration of copyright from life of the author plus 50 years, to life of the author plus 70 years, was a mistake.

It will be shown that harmonisation, although an important principle of the Community may not be a desirable step with respect to copyright. Increasing the Berne minimum term of protection to life of the author plus 70 years was not the simplest way to achieve harmonisation, or demonstrate respect for the majority of existing right holders and consistency in the jurisprudence of EU law.

The directive may actually impair the free movement of goods. An extended monopoly could have the effect of restricting the amount of works entering the single market, allowing owners of extended and even revived copyright to place restrictions on the movement of such works within the single market. Consequently, prices are likely to be kept artificially high by a prolonged period of monopoly over copyright material, further limiting the public’s access to such works.

The Commission’s argument that European Citizens are living longer will be challenged, as past average statistics do not always accurately represent the facts. If such figures are true however, in the UK they show that over the next twenty years the increase in life expectancy, taking into account two generations after the life of the author, is just four years. Furthermore, it is questionable whether the descendants of an author will actually be the beneficiaries of the extended term.

Finally it will be demonstrated with particular reference to American sources, where the recent Copyright Term Extension Act has effected an identical term extension in the US, that far from encouraging the creation of works, the term extension could have the effect of restricting the production of new works.

Council Directive 93/98/EEC

(2) Whereas there are consequently differences between the national laws governing the terms of protection of copyright and related rights, which are liable to impede the free movement of goods and freedom to provide services, and to distort competition in the common market; whereas with a view to the smooth operation of the internal market, the laws of the Member States should be harmonised so as to make term of protection identical throughout the community;

Harmonisation

The term of protection given to copyright in different EU countries ‘varied considerably’.[6] In Germany for example, the term provided was life of the author plus 70 years, compared with Spain and France giving life plus 60 years for musical works[7], while the majority of countries, including the UK adhered to the Berne Convention minimum of life plus 50 years. The enactment of the provisions of the EC Duration Directive has been described as ‘the culmination of a legislative process which was initially prompted by the European Court of Justice’.[8]

The harmonisation of Intellectual property duration across the EC is deemed to encourage two of the fundamental tenets of the community, a level playing field for competition, and free movement of goods and services within the single market.[9] The effect the discrepancies in copyright duration had in dividing the single market, and the jurisprudence of the ECJ in relation to the changing face of Europe, is evident in the contrasting decisions of Consten and Grundig v Commission[10] and EMI Electrola v Patricia.[11]

In Consten and Grundig, the ECJ developed the principle of ‘exhaustion of rights’. The principle can be illustrated as follows: ‘An importer seeking to take advantage of price differential between member states, may buy certain goods in a territory where prices are low and seek to import them into a territory where prices are higher. The owner or licensee in the country of importation may seek to rely on [their] intellectual property right to prevent such import’.[12] The ECJ ruled however, that once the owner of an intellectual property right, namely copyright, has launched or authorised the launch of a product on the market anywhere in the common market, they cannot use their intellectual property rights to stop that product moving freely within the market.[13]

Conversely, in Particia the ECJ decided that copyright ownership could be used to prevent the importation of such goods, with the effect of dividing up the single market.[14] The court ruled that although the defendant had marketed the goods legally in one member state where the copyright had expired, this could not constitute the consent to the exhaustion of their rights. Therefore, a prohibition on the goods being imported to another member state where copyright had not expired was justified. [15]

Despite the minimum term of life of the author plus 50 years provided for by the Berne Convention, as stated several EC countries had enacted longer terms, notably Germany at life plus 70 years. In the interest of forwarding the single market, the commission proposed that the term of protection amongst all member states ought to be harmonised upwards to life of the author plus 70 years in order to prevent the type of dispute that had arisen in Patricia.

A unified term of protection will facilitate the free movement of goods and provide greater harmony in the single market. However, it is worth considering other areas of free movement law. The ECJ has consistently adopted a principle of negative integration, described as the ‘regulatory race to the bottom’. It functions more in line with the Grundig decision, where by once goods have been legally marketed in one member states, rules implemented in another state can not have the effect of hindering the marketing or sale of goods or impose unfair burdens and expense on importers.[16] The point being made is that under these circumstances the lowest legal standard provides the benchmark across the entire community.[17] The ECJ chose not to adopt this principle in relation to the harmonisation of copyright term. This seems to demonstrate a disregard for consistent legal rules and jurisprudence across free movement law, as well as contempt for the provisions of the Berne convention minimum.

The commission deemed necessary to respect the legal order of the longer term and protect the rights of holders in those countries, and require every other member of the union to correspondingly adjust the length of copyright protection offered to life of the author plus 70 years.

As Mr. Justice Laddie has suggested, “This additional twenty years has been imposed throughout the Member States of the European Union to bring us in line with the domestic law of Germany”.[18] Along with this, it is also noted with respect for the claim for recognition of rights that although Germany had a life of the author plus 70 year term, the directive did not recognise all Member States rights. Spain had adopted a term of life of the author plus 80 years for certain copyright works, indicating that this is a rather empty claim by the Commission.[19]

The Commission’s line or reasoning may be challenged on two further counts. Firstly, as mentioned above, this does not offer the same respect to the legal rules of the majority of states who had considered the Berne provision of life plus 50 as an adequate term of protection, or the public expectation of certain works entering the public domain 50 years after the death of an author.

Secondly it is arguable that harmonisation upwards was not the easiest or most desirable way to achieve harmonisation and the ‘smooth operation of the internal market’. It is interesting to note that the UK Government originally envisaged “that least change would be required overall if a term of life plus 50 years were adopted throughout the community: only one state would need to change its law and three others would need to phase out periods of extension”[20] Therefore, greater respect for the majority of existing legal systems, copyright owners enjoying the extended term, and the public at large, could have been achieved by allowing all current rights to expire subject to reciprocity of term (or national treatment as with revived copyright. See below) amongst Member States and then ensuring that all countries adhered to Berne standard of life plus 50 years for all future works.

Revived copyright:

Despite these criticisms, the ECJ has given ‘theoretical support to the harmonisation aims of the Commission’[21] in the Phill Collins case. In the original draft of the term directive[22] the commission had proposed that works which were still protected in one member state, but had expired in another, would continue to be protected in the former for the extended period but remain in the public domain for the latter group of states.[23] This has been labelled the ‘comparison of terms’ principle. However, by the time the directive had been adopted by the Council of the European Communities[24] this position had changed.

Art 10(2) as confirmed in the decision of Phill Collins[25] determines that Member states will have to give the same protection, or “national treatment” to other EU states. This had the unexpected practical effect of extending the ambit of the duration directive,[26] and as a strange consequence all works which were still protected in Germany would benefit from the 70 year term in the whole union, even if some of these works were out of copyright and in the public domain in a number of member states.[27] The UK for example, would have to protect the rights of German nationals for the full term available to them in Germany, even though their term of protection had already expired under the previous duration of life plus 50 years, for up to the twenty extra years provided by the life plus 70 term of the directive.

Acquired rights

The ramifications of revived copyright pose further problems, again questioning this justification of the Directive as it fails to provide lucid clarification that would ensure harmonisation in this area. The consequent proprietary issues stemming from the extension of existing copyright works and the revival of expired copyright, were ‘ducked by the
Directive’[28] and left to the individual nations to determine.[29] It was this flexibility and lack of definite codification that the directive was designed to iron out to ensure uniformity, and provide for a level playing field with consistency amongst the rules of member states.