INTELLECTUAL PROPERTY LAW
THE CURRENT TERM OF COPYRIGHT PROTECTION IN THE UNITED KINGDOM CAN BE JUSTIFIED
Lecturer/Seminar leader: Alan Story
29th March 2006
Word Count – 4989... (excluding footnotes)
Section 1 - Introduction 4
Section 2 - Historic Development of Copyright Protection – Key Events 4
1710 – The Statute of Anne 4
1841 - Speech by T.B.Macaulay to the House of Commons 5
1842 – The Copyright Act 5
1878 – The Royal Commission into Copyright 5
1886 – The Berne Convention 5
1909 – The Report of the Royal Commission into Copyright 5
1911 – The Copyright Act 5
1956 – The Copyright Act 6
1988 – The Copyright, Designs and Patents Act 6
1993 – European Union Council Directive 93/98/EEC
on Duration of Copyright 6
Section 3- Brief Introduction to the Criticisms of the
Term of Copyright Protection 6
Section 4 - The Current Duration of Copyright Protection is Necessary 7
Maintenance of Existing Property Rights 8
Incentive to Create 9
Providing for Family 10
Commercial Value 10
Natural Justice 11
Section 5 - Taking on the Critics 11
Is 70 years really necessary? 11
Does increasing the term of protection increase the incentive? 12
Starving the public domain 12
Copyright as a monopoly 13
Section 6 - Case Study – Great Ormond Street Hospital 13
Section 7 – Conclusion 13
Section 8 – Bibliography 15
Arguments against the extended term of copyright protection are numerous. Critics claim that the current term of the author’s life plus 70 years is too long and does not act as an increased incentive to create. They say that the term allows a monopoly and is starving the public domain. In addition to this they find fault in the length because authors often sign their copyrights over to publishers and printers and are therefore not directly profiting from the royalties afforded as a result of the protection. These criticisms are all relatively logical, but once broken down and compared with the justifications for the current term, they seem to become somewhat insignificant. The most important justification is also the main reason the term was extended in the first place, that is, to harmonise protection across the European Community so as to ensure a smooth running common market and to reduce distortions in competition. By charting the historic development of copyright, we can see that the level and length of protection has moved with the times. The recent extension is simply a continuation of the natural progression. With life expectancy on the rise, in order to meet with the historic justification, that is, for copyright protection to provide for two successive generations, the term must be extended.
This essay will discuss the historic development of copyright protection, explain the justifications for the current term, and analyse the arguments against its duration.
Section 1 - Introduction
In a world where intellectual property is becoming more and more important in everyday life, there is an argument that has affected each and every one of us in one way or another. This debate is on the extension of the term of copyright protection.
The dictionary definition of copyright is;
‘The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.’1
This definition is clear and the rights associated with it are protected by law across the globe. However, it is not the definition that is in question; instead it is the length of time for which such ‘works’2 are protected. Copyright law in the UK is governed by the Copyright, Design and Patents Act 19883, as amended by the Copyright and Related Rights Regulations 20034. There is an important international element to UK copyright law, stretching as far back as 1886 when the Berne Convention set a minimum standard of protection among participating countries. The UK has also been affected by a growing number of European Directives and International Proposals.
The developments in Copyright law that we are most interested in are the term of protection amendments. Through the centuries, the extension of copyright has been a much debated issue, and despite governments and law making bodies across the world favouring its occurrence, it has been the subject of much criticism. It is the purpose of this piece to show the historic development of copyright extension, point out the numerous criticisms of the extended term and then justify the legislation.
Section 2 - Historic Development of Copyright Protection – Key Events
1710 – The Statute of Anne
This was the first copyright statute; it recognised the author as owner of copyright and gave a limited term of protection to works of 28 years. The case of Donaldson and Beckett in 17745 established that literary copyright protection was a statutory right of limited term. At this point, the laws were primarily to protect the economic investment made by printers and publishers rather than the creative efforts of authors. It was not until the nineteenth century that authors began to be seen as creative geniuses and calls for their creations to be protected were made.
1841 - Speech by T.B.Macaulay to the House of Commons
This speech was opposing the proposed extension of copyright to 60 years where he said that whilst he fully supported the copyright system and saw its obvious advantages as a form of incentive to creators, he could not see the benefit of such a long term of protection. He said that he saw no reason why royalties should be paid half a century after an author’s death to someone often utterly unconnected with them.
1842 – The Copyright Act
This was lobbied for by a number of important and well known authors, and stated that the term of copyright was to be increased to 42 years from publication, or seven years after the author’s death, whichever was longer.
1878 – The Royal Commission into Copyright
This was the first time the idea of uniformity at a domestic level had emerged, which recommended that the term of protection be the life of the author plus 30 years. The commission recommended that the term of copyright be the same for all works of fine art and sculptures, books, dramatic works and musical works. Propositions of a unified domestic term that afforded protection a number of years after the death of the author was an idea already being enacted in foreign jurisdictions, and this led to suggestions of international copyright arrangements with other States.
1886 – The Berne Convention
Article 7(1) of the Berne Convention says that the term of protection shall be the life of the author plus 50 years. Article 7(6) goes on to say that countries bound by the convention may grant a term in excess of the author’s death plus 50 years.6 So we can see a minimum standard of protection being set among internationally participating countries.
1909 – The Report of the Royal Commission into Copyright
Much support was shown for an increase term to 50 years from the author’s death which would provide both domestic and international uniformity. The term was thought to provide a just reward for authors whose work was of an especially high standard and provide little change for sub standard works. Opposition began to argue that the increased term would take rights away from the public, but their arguments were largely brushed aside.
1911 – The Copyright Act
Most recommendations of the 1909 report were enacted. The term of protection was for literary, dramatic, artistic and musical works was set to 50 years from the death of the author. Importantly, it was set that 25 years after the authors death, any person could reproduce and sell the author’s work, as long as they pay royalties of 10% of the sale price. This Act introduced reforms that brought the UK in line with the Berne Convention.
1956 – The Copyright Act
This allowed the UK to ratify the Brussels Act of the Berne Convention which contains some specific elements regarding television and film recordings. The Act maintained the term set in 1911 with few exceptions.
1988 – The Copyright, Designs and Patents Act
Section 12 of the Act states that copyright protection for literary, dramatic, musical or artistic works will stretch to the life of the author plus 70 years. This has been subject to much criticism and has been amended on a variety of occasions by European and International agreements.
1993 – European Union Council Directive 93/98/EEC on Duration of Copyright
In order to ensure smooth and efficient operation of a common European Community economic market, it was imperative that the member states harmonized their terms of copyright protection. In order to harmonize, they had to increase protection in each country so as not to take rights away from citizens. For the UK there were no changes as our duration was already the longest. The directive states that the duration of protection for literary, dramatic, musical or artistic work is life of the author plus 70 years.
Section 3- Brief Introduction to the Criticisms of the Term of Copyright Protection
As mentioned previously, the majority of opinion says that the term is too long already and should be shortened. I will briefly introduce the main arguments, before tackling them in more detail later in the essay.
Many commentators agree that there should be system of remuneration acting as an incentive for authors and creators to keep producing works; however, most find fault in the fact that royalties are still paid 70 years after the author’s death.
To add to their argument, it is often the case that these royalties are not even received by the authors themselves. Instead, authors are commonly either made to sign over copyright as a prerequisite to publishing, or they chose to simply sell it for a lump sum instead of collecting royalties over a period of time.
In addition to this, they say that there is no need for such a long term incentive, and rely on great works created before copyright protection was so strict and lengthily.
Critics claim that the extended term of protection is starving the public domain. They claim that the public domain is the source from which authors draw, and have always draw. So by lengthening the term of protection, the public domain is being contracted. It is suggested that many new pieces are not written because of the authors’ inability to get a licence from a copyright holder.
Another strong claim is that by having such long term protection, we are allowing the growth of monopolies. They argue that there should be provisions allowing a short term monopoly as an incentive for creation, before returning to the free market foundation on which our economy is based.7
Before I look at these points in more detail I will state my argument in favour of the extended term of duration.
Section 4 - The Current Duration of Copyright Protection is Necessary
I will now discuss the justifications for the current duration of copyright protection.
Harmonisation has been a key issue in copyright law since the late 19th Century when it was first discussed at a domestic level in 18788. Eight years later, the Berne Convention bought the problem to the international stage where it set a minimum term of protection which must be adhered to be all participating countries. Problems arose however due to the fact that the convention allowed individual countries to extend their term of protection.9 This led to varying levels of protection across the world and caused significant issues in the European Community due to differences in standards. A good example is that in the term of protection for literary and dramatic works in Spain was life of the author plus 60 years whereas the term in Germany was life plus 70 years.
This was a serious problem for Europe as one of the fundamental principles of the Union is to promote a free and common market. This is why the Duration Directive10 was passed, with the guiding principle of enabling free movement of goods and provisions of services throughout the Community and to prevent the distortion of competition in the common market.11
The enactment of the provisions of the Duration Directive was a culmination of a legislative procedure initially prompted by the European Court of Justice12 in EMI Electrola v Patricia13 where they considered differences in the terms of copyright for sound recordings in Germany and Denmark. The case concerned the importation of Cliff Richards records from Denmark to Germany which had been made in 1958 and 1959. Under Danish Law, the rights had expired, and the records were therefore marketable in Denmark without the copyright owner’s permission. However, in Germany, the rights in the recordings still existed, and the owner sought to establish exclusive distribution rights. The plaintiff said that under article 30 of the Treaty of Europe, it had the right to free movement of goods and claimed that restrictions on movement were prohibited by European Law. The defendant counter argued based on article 36 of the Treaty which states article 30’s limitations when the law in member states is in question.
We can see that this case produced a real conundrum for the ECJ, and the judgement given reflects this. They said that the longer term of protection in Germany applied to prevent the importation of goods even where copyright had expired in other European countries. The ECJ went on to say that ‘in the present state of the Community, characterised by an absence of harmonisation, it is for national legislatures to specify the conditions and rules for such protection’.14
As a direct result of the case, and other questions aimed at the European Community, the E.C. Commission, there was a public hearing on the issue of harmonisation at which overwhelming support was shown for the idea. By harmonising the term of protection across Europe, many repetitive legal problems would be tackled. There would be an increased level of legal certainty, the anti-competition policy would be bolstered, and issues of piracy would be dealt with more efficiently.
After a variety of proposals and amendments, in 1993, the Duration Directive15 was passed which increased the term of protection in member states to life of the author plus 70 years.16 Soon after the Directive was introduced, and before it was implemented in most member states, the ECJ again showed the public their intentions in the Phil Collins17 decision where they placed a positive obligation on member states to grant foreign citizens the same level of protection as they would enjoy in their own countries.
So we can see that this argument of harmonisation is hard to fault, unless one suggests that the UK leaves the European Union or that the idea of a free common market should not be encouraged. I will go on to discuss further justifications for the extended term of copyright protection, many of which come back to this fundamental principle of harmonisation.
Maintenance of Existing Property Rights
When harmonising the term of copyright protection across Europe, the legislators had to ensure that they did not encroach on any existing rights protected under national and European law. At significant risk was the fundamental principle that property rights, once conferred, cannot be taken away. If we take Spain as an example, and imagine that the European Commission had decided to harmonise the term at 50 years, then the Spanish authorities would have had to implement some kind of transitional system whereby rights would be instantly taken away from copyright owners who were enjoying some kind of benefit 52 years after the author of the work has passed away, as well as having to deal with the inevitable litigation from people trying to claim back any royalties they had paid because of the old copyright protection laws. This would simply cause too many problems, and could lead to public and legal disarray. The principle of legal certainty would have been called into questions, as well as that of retrospective law making. This may sound like a far fetched example, but if the European Commission had decided to make such changes in the law, these issues would have been prevalent in many countries of the European Union.
So in order to avoid such transitional periods, and in order to maintain the principle of observing established rights in countries where longer terms of protection existed at the time the Directive came into force, the European Commission had to raise the bar to meet with the longest term of protection provided by any one member state. The longest term of protection among the member states for literary and dramatic works was life of the author plus 70 years, and that is what was set in the European Directive.
This does of course raise the issue of reviving and extending copyright protection in member states, but this is a much more simple process and does not go against fundamental principles instilled in many constitutions of member states and that of the European Treaty.
Critics of the current term would be faced with a hard task to find an argument that can hold firm against that of harmonisation, and once harmonisation is accepted as necessary, it is plain to see that the only way of doing this was to extend the term of protection.
Incentive to Create
It has been long accepted since the first tracing of copyright, that the creative genius of authors and artists should be rewarded financially. In this day and age, if there were not a system of remuneration for authors, they simply would not be able to write for a living. We would end up with a literary library written only by those who have the financial security not to need some other form of income. Putting this into context, it is a known reality that lawyers are well paid due to the nature of their work and the fact that they must have a certain level of academic ability to do their jobs successfully. The more talented you are as a lawyer, the more you will be paid. I now propose that an author, who is able to write a book that attracts hundreds of thousands of people to read it, has a considerable amount of talent. It is only fitting that such talent should be rewarded by a high level of remuneration. The author will only receive royalties for the work over a prolonged period if it is good enough to be bought and read by people up to seventy years after he had passed away. This is a line of reasoning that has so often been brushed aside in the past; however I believe that it has good grounds as a justification for a long period of copyright protection. If a work is of such a good standard that it is being read after the author’s death, I believe that it deserves to profit for as long as it is being sought after.
Taking this argument back to a more orthodox approach, it is a simple fact that creators must be rewarded financially, firstly as a means of making a living, and secondly as an incentive to create in the first place. There is no doubt that increasing the amount of time in which authors and other creators are able to claim royalties will act as an increased incentive for them to put more time and effort into their work.
One must remember however, that this is not the primary reason for the extended term of copyright protection. Instead it is a reminder that men and women put a lot of work into their creations and should be rewarded in the best way possible for their efforts.
Providing for Family
It has always been the plan that when an author produces a work that is to be protected by copyright, two successive generations should be able to benefit from the royalties. The old term of 50 years was sufficient twenty years ago, but as life expectancy has grown longer, so should the duration of copyright protection. It was noted that the average lifespan of the European Community citizens was on the rise and that due to this, the term of life plus 50 years for the protection of literary, dramatic and artistic works was no longer adequate to provide for two generations.
The obvious counter-claim from critics is that often it is not even the authors and creators that benefit from the protection due to clever contracts where publishing and printing companies reap the rewards instead. The European Union is however trying to hush such critics by proposing protective legislation relating to copyright contracts. In addition to this, one must remember that when a copyright is being bought, the price will represent how long it will be popular for. This means that where an author contracts out his copyright for a book that is predicted to be a bestseller and be admired for years to come, he will be asking for a much higher price than the author who is writing a standard text that will be out of fashion or out of date within a couple of years.
Although it is easy to see how such an argument is criticised, it is also easy to see that every man or woman will want to leave their children and grandchildren with as much of a head start as is possible. We live in a world dominated by the financial markets, where although money does not buy happiness, it certainly buys everything else! There is no evidence to say that a creator should only be able to pass on their benefits to their children, when with life expectancy rising, close bonds between grandparents and grandchildren are very common.
The extension that took place as a result of the European Duration Directive was worth billions of pounds to large media companies including many in the European music industry. But for the extension, great records by artists such as Elvis Presley and Chuck Berry would have been without copyright from 2005. The Directive said in article 3 that copyright in performance works expires 50 years from the end of the year in which it was performed; or, if during that 50 year period a recording was made and published, or was otherwise made available to the public, copyright expires 50 years from the end of the year when it was published or made available.18 As the Music industry is already fighting against piracy and falling prices, it would be a huge blow to have reduced any rights already under threat. Many companies are currently lobbying the European Commission in a request for them to bring protection in line with the United States which offers corporate protection for 95 years and individual protection for 70 years.19 The argument here is that in order to produce good quality musical pieces, companies have to invest heavily in talent spotting, training and advertising, and therefore require long term economic benefit for the system to be financially feasible. The companies do not squander the royalties they receive from old songs, instead they reinvest the money in the hope of finding and producing the next song for us to enjoy. If the term of protection in musical works was shortened, this would lead to a diminishing musical library and fewer talented artists being given opportunities to develop their talent and make a living from it.
Another good example helping to justify the extended term in a commercial sense is that of Disney and their iconic characters such as Mickey Mouse. Disney has put so much time and effort into the shaping and marketing of such figures that they have become iconic in status and have featured in almost every child’s life. In America changes to the copyright protection term were introduced in 1998 by the Copyright Term Extension Act20 which extended protection by 20 years. The move was worth billions of dollars for Disney, money which plays an important role in the financial stability of the country.
My final justification comes in two parts based around the concept of natural rights that are granted to us on an almost moral basis. Firstly I feel that the relatives of creators, whose works continue to hold financial value, have a right to reap the benefits after the author’s death. Secondly, it should be the descendants who are given the responsibility of controlling who has the right to exploit their relatives work. Surely a descendant would be best qualified and able to fulfil the wishes of the author. This encompasses many of the arguments made above as it assumes that there was a close bond between the author and their children and grandchildren.
Section 5 - Taking on the Critics
As mentioned earlier, I will now turn my attention to the main criticisms of the extended term of copyright duration. In doing this I will continue from the introductions given in section 3.
Is 70 years really necessary?
Critics claim that this is too long for protection and that the 50 year term was more than adequate. The argument comes along two main lines; firstly the fact that the majority of authors sell their copyright to publishers and printers so they can benefit from a lump sum. I accept this as fact, but we must be aware that there are many creators who do keep the full copyright so that their families can benefit, and there are also a great number of people who sell part of the right, so they can collect part of the royalties. Also, remember that the longer the term of protection someone is buying, the more they are likely to pay. So whatever way you look at this issue, the author/creator still stands to benefit from the longer term. The second line of reasoning suggests that authors need only to provide for their children and that the grandchildren should provide for themselves. Historically this was based around the fact that many people never knew their grandchildren at all, or did not get to know them very well because of the low life expectancy. This is no longer the case as people are living for longer and building close relationships with their grandchildren.
Does increasing the term of protection increase the incentive?
Although the increased incentive argument is a weak one in terms of justification of copyright term extension, it is a point on which the critics really pick up on. They claim that there is no need for such a long term incentive, and that this is easily proved simply by looking at the number of works created before the copyright protection system reached anywhere near such a lengthily duration. They would typically draw on the works of Shakespeare as a good example. Even if we talk about works created 20 years ago, we still have a different scenario now. Every year inflation means that the pound is buying us less and less, and this means that wages have also risen with it. We have already accepted that royalties and publishing deals are the authors remuneration, which leads me to say that as wages for standard forms of employment increase, so should the length of time that an author can receive royalties. As times change, and the value of the pound in a domestic market changes, so must the term of copyright protection.
We can also add to the incentive argument by bringing family into the equation. If we accept that the majority of people will form a relationship with their grandchildren, it is easy to see how the opportunity to provide for them will be an added incentive to produce good quality works. It is unlikely that many people would reject the opportunity to help their grandchildren once they have passed away.
Starving the Public Domain?
The argument here is that the public domain is being starved so that the economic desires of copyright owners can be fulfilled. Dr Karjala says that if Europe protects its copyright owners for a life plus 70 years period, its public domain is reduced, and the European general public suffers a net loss unless it is shown that creation incentives outweigh the reduction.21 The argument stands that there is real public benefit in letting work fall into the public domain so that other authors and creators can work from them and add to the literary library.
My argument against this is simple, if people are going to create, they do not need to be inspired by the work of others. What use is reading adaptation after adaptation; we as a public want new books to read where the author has been inspired to write about something totally different to anything we have seen before. The public are not put at any disadvantage by the fact that the works do not fall into the public domain quickly. They can still go and buy a book for a small price, and can still borrow from public libraries as often as they chose to. The only people that lose out are those who wish to get something for nothing. They want to profit from another persons hard work, and this is not a good enough reason to claim that the duration of copyright protection is too long.
Copyright as a Monopoly
This is the proposition that copyright protection allows a monopoly, which goes against the free market values that we live by. However, as said by Mark Sherwood-Edwards,22 copyright is not a monopoly right, whatever way you look at it. Copyright does not make its owner a major player in any market. It gives exclusive rights, but so does all forms of property. If you own a house, you have exclusive rights to it; no one else can tell you what to do with it. To have a monopoly you would have to have control of the market; owning copyright in a work that ‘you’ created, does not give you control of any market, it simply gives you exclusive rights to control the use of ‘your’ own work.
Section 6 - Case Study – Great Ormond Street Hospital
An article in The Guardian Newspaper in 200423 showed how copyright is being used to help children in Great Ormond Street Hospital in London. The article tells of how the creator of the Peter Pan story, JM Barrie, left the lucrative copyright to the hospital. The hospital uses the much needed royalties from books, stage plays and especially films, to equip itself with the most up to date state of the art medical apparatus. They are most grateful for the copyright extension laws as it means that the children being treated can continue to benefit from the money.
However, as they are aware that sooner or later, the copyright will no loner be protected, they were actively trying to commission another author to write a sequel to the play that they could continue to profit from.
Such an example shows the benefit of the extended term of copyright in a broader aspect than just the author’s family benefiting after his death. Without the extension laws, the hospital would not have such equipment and the treatment being given to many children at the hospital would be reduced in both quality and quantity.
Section 7 - Conclusion
Harmonisation of the term of copyright protection across the EU, and indeed the world, is vital if we are to prevent distortion in competition and encourage an efficient free market system. I have mentioned the main arguments against the term of protection, but I do not feel that any of them can contend with the harmonisation justification. Put simply, we are a member state of the European Community and are therefore striving to achieve a smooth running common market. With Intellectual Property being so important in our modern world, this is an area that must be harmonised in order to prevent complications that are against the fundamental principles set out in the charter.
We live in a world where everything we do needs to be rewarded, and over time, these rewards must be improved. It is simply a matter of natural progression, and it happens in every area of our modern world. The justifications of the extended term of copyright are not trying to validate any grave injustices that are being produced as a result of the legislation. Instead, they are simply giving an explanation for something that was inevitable. The term had to be harmonised eventually, and it would have been completely irrational to do this by decreasing its length in some countries. An extension was more than necessary and as I have shown in this piece, can be more than justified.
Section 7 - Bibliography
Christie and Gare, Statutes on Intellectual Property, Blackstones, 7th Edition, 2004
Davis, Intellectual Property Law, Oxford University Press, 2nd Edition, 2005
Patterson, Copyright in Historical Perspective, Vanderbilt University Press, 1968
Davies and Spronston, Copyright: Term of Protection Directive, European Intellectual Property Review, 2005, 27(4), N85-86
Karjala, Comment of US Copyright Professor’s on the Term of Protection Study, European Intellectual Property Review, 1994, 12 EIPR 531
Sherwood-Edwards, Term of Copyright, European Intellectual Property Review, 1995, EIPR, 17(4), 209-210
Cases and Other Sources
Collins v Imtrat Handelsgesellschaft mbH, 1993, (c-92/92), ECJ
Donaldson v Beckett (1774) 2 Bro Parl Cas 129, 4 Burr 2408, HL
EMI Electrola v Patricia (1989) ECR 79
European Union Council Directive 93/98/EEC on Duration of Copyright 1993
Senate Report No. 104-315, 104th Cong, 2d Sess, Copyright Term Extension Act of 1996, Report by Hatch also containing minority views.
Speech by Senator Hatch to the US President and Congress, Statement on Introduced Bills and Joint Resolutions
Speech by T.B.Macaulay to the House of Commons, 1841