No. 6/1992 ‘The Copyright Term 13 In the light of the Community and national framework of commercial broadcasting and trans-border advertising as shown above, further interven- tion by Community bodies is desirable, with the aim of completing the Bberelisation of the broadcasting services and bringing about the harmoni- sation of regulations in the advertising sector, bearing in mind rapid development of technology and the ever increasing prospects of European competition. Sam Ricketson* The Copyright Term! : Introduction Discussion of the desirable term of protection has historically attended most national efforts at copyright law reform. This is hardly surprising, as the issue of duration is inextricably linked to the question of the rationale of protection: unless there is clear consensus about why protection should be granted, and what form itshould take, itis difficult, if not impossible, toreach any sensible decision about how long it should last. It is puzzling then, in recent years, that there has been relatively little discussion of this question, both at national and international levels. The reasons for this are not easy to ascertain, but the time is now overdue for such an examination. The object of the present article is to outline and discuss the issues that such an investigation should cover. It begins with a consideration of the object or objects of protection and then moves to an examination of the issues that are relevant to determining the term (or terms) of protection which best achieves these objects. It then looks briefly at the international rules governing questions of duration and concludes with a consideration of desirable future policy in this area. The Objects of Copyright Protection ‘There are inevitable national and ideological differences over this question, which make it difficult to proceed except by way of crude generalisation. Ed. nove: This article was written well over a year ago. Therefore, leter revision proposals concerning the EC and the Berne Convention have not been included, * LL.D, Professor of Law, Monash University, Melbourne, Australia, 1 Iwish to acknowledge the helpful comments and suggestions of my colleague Tony Duggaa oa ‘an earlier version of this article. © VCH Verlagsgesellschaft mbH, D-6940 Weinheim, 1992 0018-9855/92/0612-0753802.500754 Ricksison DC Vol. 23 However, two polar extremes can be identified that carry with their adoption inevitable conclusions about the issue of term: there are those who argue that authors’ rights are natural rights of property and those who see them in purely functional terms as economic and policy instruments for the dissemination of knowledge as well as the promotion of social and economic development. From the perspective of natural rights theories, the implications for length of protection are clear enough: it should be perpetual.? As the focus is entirely upon the author and the author’s property in his or her intellectual creation, this approach takes no account of the wider social and economic conse. quences that may flow from such protection: any positive or negative externalities that may arise are purely incidental to the recognition and protection of the natural property right. For the “functionalists”, however, the opposite conclusion is equally obvious: why should protection be allowed for any longer than is necessary to achieve the particular social or economic goal that is sought to be achieved by that protection? Indeed, if it can be shown that the goal is not advanced by the grant of protection, why have it at all? Natural rights theories, in all their various forms, have had a strong influence on the development of copyright laws in both civil law and common law systems. Indeed, it is often forgotten that the struggle for perpetual post-publication copyright in eighteenth century England was strongly predicated on such ideas and thet, for a period, they found sympathy among the judges of the King’s Bench.> The same sentiments clearly underpinned the revolutionary French decrees of 1791 and 1793¢ and were carried into other European legal systems in the early nineteenth century as they followed the Freach example and legislated for the protection of authors. At the 2 See further J. Kase, “Copyright Thought in Continental Burope: Its Development, Legal ‘Theories and Philosophy; a Selected and Annotated Bibliography” 1-15 (Rothman, South Hackensack, 1987), and S.B Laas, “The International Protection of Literary and Artistic Property” chep. 1, Harvard Studies in International Law (Macmillan, New York, 1938). See also the illuminating discussion of natural property rights in patents of invention by F. ‘Macutur & E. Penrose, “The Patent Controversy in the Nineteenth Century”, 10 Journal of Eoonomic History 1, 11-27 (1950). 3 In particular, see Millar » Taylor, 4 Burrows 2408 (1774), 98 English Reports 295, See further LR. Parrerson, “Copyright in Historical Perspective” (Vanderbilt University Press, Nashville, 1968); H. Ransom, “The Fist Copyright Statute” (University of Texes Press, Austin, 1956) and J, Pimirs, “Legal Outrage and Established Guile’, 1981 EIPR 295. Two ‘hundred years later, though, the seme argument was forcefully put tothe Gregory Committee ‘on Copyright by Marie Stopes: Boanp oF Traps, “Report of the Copyright Committee” paras. 16-17, Cmnd 8662 (HMSO, London, 1952). 4 Lew of January 13-19, 1791 (performing rights) and Law of July 19, 1793 (reproduction rights). further S. RICKETSON, “The Berne Convention for the Protection of Literary and Artistic ‘Works: 1885-1986" 5 erseg. (Centre for Commercial Law Studies and Kluwer, London, 1987), (Contd. on page 755) 5No. 61992 The Copyright Term 155 intemational level, too, perpetual protection was nearly adopted as the ideal Standard at the first international Congress oa Literary and Artistic Property "held at Brussels in 1858.¢ Detpite the influence of such theories, however, national laws from the very seamlneat invariably placed temporal imitationson the protection that they Bra a Wider policy conceras can be observed at work here, notably the Reed to protect the rights of the public to use and have cventes! set them teted access to the fruits of literary and artistic endeavour In addition, there has always been a tradition of State interest in the production of book and other works that goes back to the old systems of printing pri ileges thet sed to exist in most European countries.® Initially this concern Was contend on the need to control and censor; with the changing political belice of late eighteenth century, it was transmuted into a more benevolese public Shasta With issues of free expression and the “encouragement of learding"? This “public interest” viewpoint has continued to pervade all copyright leaislation, both nationally and internationally, clthough the weight ood content given toiit has varied greatly from jurisdiction to jurisdiction, Natural E attention to the wider interests of the public) have therefee seve tciumphed in their pristine form and authors rights, unlike those of eiken Property owners, have remained limited in times Dn the surface, this result appears paredoxical Neither land nor chattels fell 'nto the public domain after the passing of time: why should this be the wet i | Conte, tom page 754) | SRGIGE the texts ofthese eanly laws see C Lron-Casw & PDatatany, “Lois faaaises et | Gtrangtres sur la proprigté littéraire et artistique suivie des conventions internationales | Sonclus parla France pour le protection des auvres de iterate et dese Dake (Pichon, Pais, 188). § Ricisroon, side, et 41-2, For the full proceedings, seeB, Rouseno, “Compte rendu des Travaux du Congsts dela Propriété Linéraire et Arinigue” (Fateau, Brises 1859). | 7 Laterin the nineteoth century, twoLatin American countries adopted perpetual protection: | Mexico (Cl Code of 1871, Art. 1253) and Guatemala Decree of October 29, 10 ae 5. | (athe twentieth cennuy, Portage did so until 1985: Code of Copyright sad Relece Rights | (No. 45/85 of September 17, 1985), Art. 31, | See generally A. Darras, “Du Droit des auteurs et det artistes dans es rapports {aternttionmnx” chap 2 (Rousseau, Pais, 1887) L, Rivens, "La Protection meme ee EGS coves literares ot artistique. Erase de lgnation comparée" chen 11 (1897); W. Howsworns, "A History of English Law" Vol VI, 560-379 (2d ed, 1639, reprinted 1955); W, Sarre T Maunz & G. Sciceen, “Verlagsecht, Kommentar russ Gone wee as |, Yevlapecht vom 19.6.1901" 18 ese. and references cted therein) Ga ed., 1984). [? Taisphraseisteken from the Preamble ofthe Statute of Anne, which reads as follows: “An Act | {or the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or urshusers of such Copies uring the Times therein mentioned.” Se they PATTERSON, op. | ee and Ranson op. a {736 Ricketson TIC Vol. 23 with literary and artistic works? One answer is to be found in the fact of scarcity. Quite apart from natural law arguments, perpetual property rights in tangible objects such as Jand and chattels can be justified on the grounds of scarcity and economic efficiency. Because these resources are limited and can only be used by a few persons at any one time, the grant of an exclusive property right provides the most efficient means of ensuring that they are allocated to their most productive use."* By contrast, literary and artistic works, once in the public domain, can be endlessly reproduced and otherwise disseminated without depriving the author of the original work. There is 0 natural condition of scarcity of published works that dictates the need for the grant of exclusive rights in their reproduction and dissemination. In economists’ terms, they are “public goods” which are completely divisible and which cannot be readily “appropriated” by their “owners”, Justifications for the grant of exclusive rights in subject-matter of this kind therefore need to be sought on other grounds. In the absence of a pure natural rights approach, it is unlikely that these justifications will ever extend to embrace the need for this protection to be perpetual. The Benefits and Costs of Protection Once natural rights explanations for copyright protection are left aside, determining the appropriate rationale for protection and the length of that protection involves a careful weighing of costs and benefits, Nearly 150 years ago, T.B. Macaulay highlighted the trade-off that is inevitably involved in copyright protection in the following way: ‘The principle of copyright is this. It isa tax on readers for the purpose of giving a bounty to authors. The tax is an exceedingly bad one; itis a tax on one of the most innocent and salutary of human pleasures; and never let us forget that a tax on innocent pleasures is a premium on vicious pleasures. admit, however, the necessity of giving a bounty to genius and learning. In order to give such & bounty, I willingly submit even to this severe and burdensome tax. Ney, Iam ready to increase the tax if it can be shown that by so doing I should proportionately increase the bounty. My complaint is, that my hon. and learned Friend doubles, quadruples, the tar, end makes scarcely any perceptible addition to the bounty.” The alleged benefits and costs of protection therefore require some further examination. 10 See further B.V. Hnouex, “The Economic Theory of Patents, Copyrights and Registered Designs”, Introduction and chap. 3, “Background Study to the Report on Intellectual and Industrial Property” (Economic Council of Cenaéa, January 1971); WM. Lanoes & R. Poswer, “An Economie Analysis of Copyright Law”, 18 Journal of Legel Studies 325 (ase 11 Macaulay wes speaking in a debate in the British House of Commons against a proposal to extend the term of copyright protection: House of Commons Debates, 350, Feb. 5, 182No. 611992 The Copyright Term 757 The Benefits of Protection 1. “A bounty to genius and Hearning” ~ justice t0 authors: penci atzument, clearly indicated by Macaulay, that ‘em. Thus, the prospect of reward encourages them t and society as a whole continues'to benefit.12 academic and scientific Pecuniary motives, includin . The question of lection and its duration therefore DPegins to assume a different chareecs Bt kind and term of Protection is necessary to ensure that Publishers, etc, Prepared to invest the funds necessary for ure Production of new it the preamble tothe Statute of Anne quoted above in note 9. To similar effect, see the “dement of Wns, J. in Millar » Taylor, 98 ER 218 (1769), 4 Burr 2335,758 Rickesson WC Vol. 23 ‘Works, covering their costs and still ensuring themselves a reasonable return? As rational business people, they will not usually be influenced by the Don material considerations that might apply to authors. Nonetheless, both parties still require some incentive to start the ball rolling: the author needs a inducement to create so as to have some valuable and protectable “property” that can be sold to the publisher, while the latter needs some assurence thor investments in plant, machinery, promotion, etc.,will nt be plundered ata by third parties. The incentive required by both partes, however, may act be the same, and this raises a problem which is almost impossible to resolve [henit comes to the question of determining how long that protection should be. 4. The continuing growth of the public domain further benefit of copyright Protection is that it ensures the continuing growth and replenishment of sae Public domain of ideas, facts and knowledge. According to traditional theory, {Goes this in two ways. Fist, by limiting the form of protection granted, guarantees from the outset that there is a public domain of ideas and {formation that allmay draw upon without infringing the author's copyright Secondly, by placing a temporal limit on the protection given, the fone Which works are expressed also passes ultimately into the public demain where it may be taken and reworked by any subsequent creator, The Costs of Protection As Macaulay suggests, there are definite costs imposed by copyright Protection. These include the following: 1. A “ax on readers”: There can be little doubt that, in principle at least, copyright adds to the cost of works in the hands of the final consumer. Whether they be readers, members of an audience, users of a computer Program, etc. If a royalty is charged for the use in question, this cast inevitably add to the price of the particular product ia which the work i¢ embodied. In many, if not most, instances it will not be possible to find substitute works that are not also protected by copyright, particulary it such protection is of long duration. In the past, the professed need for jrheap books” has led countries to deny ot limit protection to foreign ‘works. This was the case in the U.S. in the nineteenth century, and jn the 1960s was promoted vigorously in the forum of the Berne Union by 15 Professor Breyer suggests that, for books, there terms may range between two and twenty 3a Sepending on the category of book: S. BrzveR, “The Uneasy Case for Copyright: & 535 of Cobuteht in Books, Photocopies end Computes Programs" 84 Har. L Rev 28), 525 (1970). However, his evidence for these suggestions is only impressionistic. 14 Pot agencral account, see J.J. Bansss, “Authors, Publishers and Politicians. The Quest foran opbprAmerican Copyright Agrecment 1815-1854" (Routledge & Kegan Paul, Landes. 1974),The Copyright Term {Far the Eeaeral background to thege debates, see Rccersoy, Pra Dote 5, chap, 11, ‘ln this rd, the detiberat ptthe Dalgleish Committee en Zealand in 1959 on the cpestion of duration provide ight Net fced by small connie i “Report ofthe Co, ight Committee lington, 1956), i Viaoet Van Gogh was OFthese, athough slasting fame now seems, snong Atsttalin ectreprenenrs, fdsseale ia relation to vzual ati, eis wes wl ‘asralia Council in 1983; the e50ured, even ell bor Artist in Australia éviual Artists Iogui780 Ricketson HC Vol. 23 an incentive to creative activity is therefore a difficult matter to assess. At best, it gives authors the chance of some return, but no guarantee: the object of any empirical inquiry would therefore be to assess what role this “promise” plays in the decision to create and to continue doing so.” Reaching the Right Balance: Alternatives to Copyright Protection In the end, it comes down to a question of balancing the trade offs: do the costs of protection outweigh the benefits conferred by the production of copyright works? Even if copyright protection is, in many ways, unsatisfac- tory, the possible alternatives do not hold out any greater promise of efficacy and certainty. For example, State subsidies or pensions to authors might be considered, but immense administrative questions would immediately arise, to say nothing of the problems of political influence and nepotism and the age-old question of “Where’s the money coming from”? Likewise, a system of carefully calibrated rewards, determined by reference to the merit of the work in question would run into similar problems of administration and political and aesthetic judgment. The most radical option would be to have no protection at all, but there are many questions here that require careful and exhaustive investigation before one could be sure that creative activity and investment in such activity would still continue under such a regime where “free riding” would become the order of the day. In the absence of such investigations, the grant of a property right which may be freely exploited in the marketplace appears to provide the least costly way of encouraging creative activity, and the market mechanismis a relatively non-political means of allocating resources, however vulnerable it may otherwise be to the whims of popular taste. For the purposes of our present discussion, the real questions are, how much, and how long, should this protection be? How Much and How Long? Both these questions are inextricably linked, in that the more absolute the right the more difficult it becomes to justify a long term of protection. This, 19 See further the discussion om this point by S. BRever, supra note 13, at 323-324, See also Sit Amold Plant's suggestion that longer terms of protection may lessen the incentive of successful authors by leading them to rest on their laurels: A. PLaw, “The New Commercein Ideas and Intellectual Property” 12 (1953). 20 See further BREYER, op. cit., at 323-324, where itis argued that the first producer always has the advantage of lead time and is therefore usually able to recoup the costs of ts investment before imitators eater the market. See also the system of “courtesy copyright” that operated for some years in the United States in the nineteenth century in the absence of copyright protection for foreign authors: W. Briscs, “The Law of international Copyright” 111 et seg. (Stevens and Haynes, Londoa, 1906); G.H. PutNaw, “International Copyright, considered in some ofits relation to ethics and political economy” 45 etseg. (Putnams, New York, 1875); BARNES, op. cit.No. 811992 The Copyright Term 751 How long? Given our uncertainty about the reward and incentive functions of Seon protection, this can hardly be a precise determination and any The Need to Provide for Dependents 1 the incentive rationale of copyright is accepted, even only in part, it can be are htt significant part of this incentive consists of ae Possibility of making provision for one's dependents, both during and after one’s lifetime, fate ae expectancies, each generation should be anced Protection ‘8 notional “life”, meaning something like sixty or seventy years,” and P eeciae, ‘Authors, Publishers and Politicians: The History of ‘Copyright and the Book |_tader ee expe 37P, 360, [EMesours, “Vers une prolongation de ta durée générale de Protection”, 24 Revue | ‘temationale du droit éureur 95 (1950), 1762 Ricketron UC Vol. 23 resulting in a total post mortem auctoris term of 120 years. Such a term borders on the fantastic: if: adopted, it would mean that the term of protection ty first. A more realistic measure for a _feneration” therefore might be a period of 20-25 years, based on the period between’birth and the attainment of adulthood, Two such periods (40 to 30 years) would also be long enough, in the ordinary course of events, to cover the life of a surviving spouse or partner. Nonetheless, itis far from clear why protection should exceed even the space of one generation after the author's death, however this is calculated. Social (onditions are now vastly different than inthe nineteenth century, when itmay have been a quite legitimate concern for a male author to wish to prevent his female dependents from sinking into the workhouse, It is also doubtful that the prospect of remuneration so long after their death provides any more incentive to authors to continue their creative activities. ‘Speaking in 1841, 7B. Macaulay wes scornful of this suggestion; referring to Dr. Johnson who had been dead for half a century at the time of his speech, he argued: Now, would the knowledge, that this ‘copyright would exist in 1841, have beena source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenel? I firmly believe not. I firmly believe that abundred years ago when he was writing our debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground. Considered as a reward to him, the difference between a twenty years’ term and a sixty years term of posthumous copyright, would have been nothing or next to nothing. Johnson, of course, was a childless widower and may not therefore have been little reason to suppose that this is aided by a lon; aris of protection tha descendants. The Apparent Inequities in a Term Based on the Author's Life Te may even be doubted that a term of protection which is based on the life of the author is fair as between individual authors. On the one hand, it has the Practical advantage of ensuring that the different copyrights of the same pumor come to an end at the same time. On the other hand, it may produce huge variations in term, depending upon when the work was created snd how Jong the author lives. Thus, Keats and Schubert were dead before they 23 House of Commons Debates, Feb. 5, 1841, at 350.Ne. 71992 ‘The Copyright Term 763 thirtieth birthdays, while Verdi, Carlyle, Hugo, Tolstoy and Picasso all lived fice weg ightieth years. Works created by these authors in mmee early twenties would have Teceived only a few years protection in the case of the Bist two, but sixty years or more inthe case of the other Givea the complete One response fo this apparent inequity would be to adopt some notional period based on average life expectancy and apply this to all works whenever the Time Needed to Recoup Investment Costs: ‘he Investor's Perspective 2 issue of duration becomes further complicated by the fact that the Seyright owner in many cases is a person other than she author, often a weclAsou%s, “Vers une prolongation de le durée générale de Protection”, 24 Revue Foegutonle du droit d'auteur 93, 112 (1959). Masouyé commer that, under such a eytte author. in default ofaowingin advance the lenges of his physical life, would in Son be sure of having an intellectal life of tno eentien S23 it New Zealand (although 56 years was finaly recommended) and 56 years in “nada: Dalgleish Committee, para. 54,164 Ricketson HC Vol. 23 treatise may be out of date even sooner Again, in the case of computer software, developments are so swift that a program may be superseded within a couple of years. Detailed factual knowledge would therefore be required in Grder to 2ssess What average duration of protection would be needed to encourage the investment needed to produce different kinds of works. Byand Targe, sich empirical investigations have not been undertaken, although one's intuition is that these terms may be quite short. (On the other hand, anecdotal and industry evidence has often been cited in favour of longer terms of protection. Thus, various publishers gave evidence to the Gregory Committee in 1952 in the United Kingdom that long terms were necessary as publishers usually offset Josses on less popular books by their profits on the more successful. A long period of protection was therefore needed to ensure that, overall, they recovered the cost of their investments.” Similar assertions are to be found in earlier British debates on copyright reform.” Itis hard to accept this special pleading at face value. It camnot be supposed ‘that publishers look to offset present losses by the promise of returns in the distant future: like all businesses, they must operate profitably in the present fas well as the future and it is not to be supposed that their decision-making is motivated by altruism. Publishing, like any other business, involves an 26 See further the discussion by BREYER, op. cit, at 2911 et seq, with respect to textbooks and “tpade books”, See also the reply to Brever by B. W.Tvenman, “The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer”, 18 UCLA Lav ‘Review 1100 (1971) and Brzver's rejoinder toTYeRwAN in 20 UCLA Law Review 75 (1972) (On the other band, there are clearly “classic” books and “classic” authors whose. works continue to de reprinted long after the author's death. Shakespeare, Dickens, Goethe, Molizre end Hugo are obvious examples, but modern authors such as Agetha Christie, Georges Simenon end Rudyard Kipling stil continue to enjoy steady sales particulary in 8 centenaty” year. According to Kipling’s biograpber, in his lifetime the author earned about cone million pounds sterling in royalties from his writings, some of it even in the absence of copyright protection (in the United States) After is death in 1936, the annual earings fis cetate continued at about the same level at east until the mid-1960s: see C. CARRINGTON, “Rudyard Kipling, His Life and Work” Appendix 4 (3d ed., Macmillan, London, 1976). 27 Boar oF Traps, “Report of the Copyright Committee” para. 21, Crnd 8562 (HMSO, London, 1952), (feference to the submissions of Sir Stanley Unwin on behalf of the Publishers’ Association). 28 ‘See, for example, Repor of the Commissioners on Copyright (the “Copyright Commission”) para. 27, C2086, (HMSO, London, 1878), and the evidence referred to therein, and see alo the specch of Mr Sydney Buxton on the provisions of the 1911 Copyright Bil dealing with uration: House of Common Debates, April 7, 1911, at 2600, See also the financial evidence tof the ton ofthe author, George Meredith, to the Board of Trade Committee on adherence t0 the Berlin Revision of the Berne Convention that his father’s copyright royalties (and presumably those of his publisher) had only started to grow appreciably owardethe end of is Father's fe andimmediately afterwards: Boao oF TRADE, “Report ofthe Committee onthe Law of Copyright” Appendix, 193, Cd 4976 (HMSO, London, 1909).No. 6/1992 The Copyright Term 765 element of risk, with no. certainty of return. It is therefore safe to assume that if publisher X is still around to receive the proceeds of a newly discovered under the then US law is instructive: she found that comparatively few Copyright owners (an average of 15 %) saw any need to renew thes copyright fora further term after the initial 28 years of protection had elapsed.” The inference that may be drawn from this finding is that, after th A further clement to be taken into account when considering the investment decisions made by publis Stploitation opportunities offered by the derivative or secondaty sights that 29 Before a British Pesiamentary Committee in 1818, publishers apparently gave evidence that {bey would not be induced to pay any higher prices for literary works inthe soon tha Soprraht was extended, The basis for this view was that few books had @ commend fat going much beyond the then term of fourteen years: refered to in the, speech of Mr. Wakley in {hs debates on the 1842 Copyright Bl: House of Commons Debates, April 6, 1842, at 1396-1377 valuable after the first fourteen ‘Sears of protection had expired: speech of Mr. Wekley, supra note 29, 31 Tt may aot always be necessary forthe initial publication or performance to be particlarly postal in its ovn right ~ it may even be a Snancial disaster. However, publication © Perlormanot ress inthe disclosure ofthe work and brings it tothe attention of other uy cha, sho exploit the subsidiary rights, Ofcourse, a higher premium fr those rghtewlng ‘chargeable ifthe initial publication or performance has beea successl,786 Ricketson TC Vol. 23 by eamings from the future sale of film or other rights. As these opportunities frequently donot arise until some time after the initial act of exploitation, this may indicate that a longer term of protection is required so that they may be realised when this happens. Once again, however, it is hard to believe that publishers and other initial exploiters of works base their present investment decisions on prospects of exploitation that may only arise in the distant future. Accordingly, the grant of a long term of protection may play litile, if any, role in the decisions they make in the present. ‘The tentative conclusions that can be drawn from the above discussion are (a) that longer terms of protection probably do not play any part in the investment decisions of copyright “investors” such as publishers and the like, although there is a need to investigate the effect that the prospect of future exploitation of derivative rights plays in their decisions, and (b) that the appropriate length of protection may well vary as between works and 2s between categories of works. Identification of Entitlements ‘After the lapse of time and numerous dealings with the copyright in a work, there is the difficulty of identifying who is entitled to particular rights and to whom application for permission to use must be made.* This is of concern to all users of copyright material, but the problems of educationalists, librarians, historians and performers probably loom largest in this respect. These difficulties are accentuated in jurisdictions where there is no registration or recording of copyright and copyright dealings. While such systems of formalities are probably not outlawed per se by the Berne Convention for the Protection of Literary and Artistic Works,} it seems Clear that the Convention requires that they should not be conditions for the subsistence and exercise of copyright. Optional registration systems may therefore not have the integrity that is possessed by a compulsory system. ‘The obvious inference, therefore, is that the identification of those persons entitled to copyright protection will be easier if this protection is of shorter, rather than of longer, duration. However, it is possible that there is still scope, within the Convention, to promote fuller use of registration systems if the latter can be seen to confer additional benefits that do not detract from 32“. [Blecause after only a few hereditary successions owing to the often complex laws of succession and the increasing legal fragmentation, the certain determination of the legal ‘owners which is necessary for legal transactions would no longer be at all possible or only with, great difficulty." explanatory memorandum (“Begriindurg”) to the West German Capyright Law of 1965, quoted in A. Disrz, “Copyright Law inthe Europtan Community” 161 (Sijthoit and Noordhoff, Alpen aan den Rijn, 1978). 33 See Art, 5(2). 34 See further RICKETSON, supra note 5, at 219 et seg.No. 6/1992, The Copyright Term 167 existence and enjoyment of effective copyright protection. This approach has not been utilised much to date by the “older” Berne countries, but the recent US accession to Berne provides some informative lessons in this regard. In addition, the advent of computer technology now makes the keeping of even perpetual record systems feasible, while the growing movement towards the collective administration of authors’ rights makes their management much easier. Thus, the combined effects of registration, technology and collectiv- isation could do much to overcome objections to long terms that are based solely on difficulties of identification. “Post Mortem Anctoris"* Suppression of Works A concern that is often expressed about post mortem auctoris protection tems, whether long or short, is the possibility of suppression of works deemed to be undesirable by authors’ successors in title. In the debates in the House of Commons on Serjeant Talfourd’s bill to extend the term of protection to 60 years post mortem auctoris, Macaulay gave several instances of “what might have been” had the descendants of certain famous English writers been entitled to control the dissemination of their forbears’ works, For example, had the control of Samuel Richardson's writings passed to his | clergyman grandson ~ “a most upright and excellent man;..fwho]..had conceived a strong prejudice against works of fiction” the world might never | have seen reprints of Richardson's novels. Likewise, the eldest son of | Boswell, who detested the whole relationship of his father with Samuel | Tohason, might have been inclined to suppress Boswell’ “Life of Jobeen™ | had the copyright therein descended to him. At this point, the debate in the House of Commons fell into farce because there were claims by other speakers that they had no doubts (based on their own personal knowledge) that Richardson and Boswell’s descendants would still have done the right | thing and allowed reprinting, however much they abhorred their ancestors’ | works!” | However, the argument itself is not trivial. Control of works by an author's descendants may cause harm in a number of ways, suppression being only one of them. Thus, the cost of permissions for third party uses may be fixed at | excessive levels and tied to various restrictive conditions. In particular, | Iasistence on exact reproduction or performance of a work may lead to artistic frustration and sterility, as, for example, bappens where permission to Perform a dramatico-musical work is only given on condition that it be done in \s Beme Convention Implementation Act 1988, Secs. 9 and 10. See further S. RICKETSON, “US Accession to Berne: An Outsider’s Appreciation", 1992 Intellectual Property Journal (Canada) (not yet published). % House of Commons Debates, Februsry 5, 1861, at 354-355, 2 House of Commons Debates, April 6, 1842, at 1353-1354 (Lord Mahon).768 Ricketson IC Vol. 23 a particular manner.**In these and other ways, the living legacy of the past can be all too readily curtailed by the dead hand of the present. ‘New Claimants for Protection: The Impact of New Technologies As noted above, the range of subject-matter protected by copyright is hardly uniform in character, ranging as it does from the sublime to the mundane. In addition, technological progress has continually brought into existence new claimants for protection. Thus, sound recordings, cinematographic films, sound and television broadcasts, typographical layouts, computer programs, works of applied art, photographs and data bases have all been accorded protection in one form or another in most countries during the course of the past 50 years. Other claimants will obviously continue to arise. In some systems, particularly in common law countries, these new kinds of produc- tions have generally been brought within the scope of copyright protection, although as a rule they have been distinguished from the more traditional categories of literary and artistic works.” In other jurisdictions, protection has been given in more hierarchical fashion. Only a few, such as films and computer programs, have been given the status of “works”; the others have been given lesser levels of protection under “neighbouring rights” laws. ‘The common thread that links these new kinds of subject-matter is that they are generally not the product of individual authorial endeavour. This is not to deny that they may embody high levels of creative and technical contributions by individuals, such as sound engineers, camera operators, record producers, film directors, programmers and the like. However, the broad agreement seems to be (a) that these contributions are insufficiently literary or artistic in character for them to be regarded as “works”, and for the persons supplying them 1o be regarded as “authors”; (b) that even if some “authors” are identifiable, there are usually too many other putative “authors” to be dealt with conveniently by traditional copyright law notions of joint authorship; and (c) that the real ciaimant for protection is the enterprise which actually underwrites and supplies the necessary investment of resources for the production of the particular subject-matter, for example, the record company, 38 As happened for many years with the Savoy operat of Gilbert and Sullivan and the pesformances of George Gershwin's “Porgy and Bess”, 39 As under the Australian Copyright Act 1958, where “works” are protected under Part IH of the Act and “subject matter other than works" ~ sound recordings, films, broedeasts and Published editions under Part IV. In more heretical fashion, the recent UK Act now protects all subject matter — original works, sound recordings, films, broadcasts, cable programmes and typographical arrangements ~ as “works”: Copyright, Designs and Patents Act 1968, See. 1. 40 See the reviews of national laws in Nomaaen & Geter, “Intemational Copyright Laws” (Mathew Bender, New York, 1989) and Stewart, “Intemational Copyright and Neighbour- ing Rights” (Butterworths, London, 2d ed., 1989).No. 611992 The Copyright Term 769 publisher or broadcasting organisation, as the case may be. These generalis- ations are subject to some strong exceptions, as in the case of films where ‘many legal systems regard them as works in the traditional sense but still have problems with identification and delimitation of authors," and computer programs, which many countries have been led to include in the category of literary work. Nonetheless, the common factor in-all these new subject- matter is that the role of the individual author (assuming there can be agreement oa who that person is and whet he or she must do) recedes into the background, and the effective claimant for protection is the entity which has invested the necessary resources to produce it. To a large extent, this is true in the case of the traditional categories of literary and artistic work (see above), but at least there the author still remains a real and readily identifiable person. Subtract the author as a meaningful concept, and the question of duration assumes quite a different character. Here one becomes concerned ‘with an industrial property kind of right, determined and delimited solely by reference to the incentive-to-invest approach outlined above. This, in tum, ‘may very well mean a term that is considerably shorter than the ordinary human author's life span. It also indicates that the appropriate term of protection may quite legitimately differ as between works and other subject-matter and as between the different categories of works and subject-matter themselves.® Special Factors Affecting the Issue of Duration: War Losses and Other Disasters ‘To what extent should the copyright term, however fixed, take account of extrancous factors that restrict the exploitation of the copyright during its “nomnal” period of protection? After both World Wars, a number of European countries gave extensions to their copyright terms to compensate for the loss of exploitation opportunities that resulted from wartime conditions, * Similar provisions for extensions of term for war loss are to be found in some national patent laws, although the original patent term is 41 Asin France: French Law of 1957, Art. 17, | 42 As forexample, in Australia (Copyright Act 1968, Sec. 10(1)), United Kingdom (Copyright, Designs and Patents Act 1988, Sec. 3(1)) and France (Law No, 85-660 of July 3, 1985, Arts. 1 ani 45-51), 43 Ths, the French Law of 1985 accords a term of 25 years from the date of creation: Art. 8. ‘4 Freach Laws of February 3, 1919, October 11, 1946 and September 21, 1951; Belgian Lewot June 25, 1921; and Italian Decree-Law No. 440 of July 20, 1945. See further the comprehensive studies of wartime prolongetions by C. Masouvé, “Les prolongations de guerre”, 3 RIDA 49 (Part J), 4 RIDA 80 (Part II), 9 RIDA 82 (Part II), 14 RIDA 109 (Part IV), 20 RIDA 59 (Part V) (1953-1958), See also Dez, ‘Supra note 32, at 165-168. See, for example, the Patents Act 1952, See. 95 (Australia) a70 Ricketson HC Vol. 23, obviously far shorter. So far as copyright is concerned, the rationale for extensions on this ground may be doubted. Unless the extended term is limited to those works which have suffered an objective loss because of wartime conditions, the extended term will apply to a great many works that would not have been exploited during this time in any event. From a practical point of view, if extended terms are not adopted uniformly, they introduce variations in term between countries that lead to uncertainty and inconvenience on the part of both owners and users. Such solutions are also inconsistent with the basic fact that copyright protection has never been intended to provide a guarantee of reward, but simply the prospect of obtaining such a reward.“ If extensions of term are granted because of war, why should they not be granted for other equally compelling reasons that may impede the exploitation of works, for example, economic or natural catastrophe, governmental restrictions, exchange controls, or even the slowness or waywardness of public appreciation of the author's works? Given that copyright terms are generally far longer than patent terms, it is reasonable to think that there will be ups and downs in all these matters and that the author’s opportunity of reward will not be materially affected one way or the other by the denial of extensions of term. The Problem of Uniformity AA further issue is that of uniformity of term. Uniformity has long been seen as a desirable object, particularly at the international level. To what extent does the attainment of uniformity provide advantages as opposed to a diversity of terms? To put the question another way, to what degree should the determination of a particular period of protection be made subject to the overriding goal of uniformity? At the most general level, the arguments in favour of uniformity embrace a number of clear benefits, including certainty, simplicity and reduced transaction costs. These advantages, however, differ according to the context in which uniformity is considered: 1. As between individual works: it may well be possible to determine the Iength of protection of works on an individual basis, according to such criteria as merit or the time needed for the cost of production to be recouped. However, it hardly needs to be said that such inquiries would be expensive and cumbersome to perform end could very well become politicised. Differential terms between individual works would also cause inconvenience and uncertainty for third parties wishing to use those works. Uniformity of term at this level therefore seems a necessity. 2. As between different categories of works: it was suggested above that different terms of protection might well be justified for particular 46 This pointis developed well in relation to patents by E. Krrcu, “The Nature and Function of the Patent System”, 20 Joummal of Law and Economics 265 (1978).No, 6/1992 The Copyright Term m categories of works. Assuming that these categories are clearly identified and there is uniformity of term within each category, such a system would be relatively easy for rights owners and users alike. Uniformity per se therefore has little attraction at this level. 3. As between different countries: given the possibilities that exist for world-wide dissemination of works and the copyright protection that is pow accorded in upwards of 100 countries under the international copyright conventions, national differences in term, whether general or specific, will ead to various disadvantages. Rights owners will be uncertain as to the duration of their rights in different countries and it will be expensive to monitor this. Third parties will also be under a similar burden. Furthermore, there may be distinct imbalances created in international trade, where a work can be exploited freely in one country but not in another where it is still protected.” Uniformity, therefore, seems a desirable goal at the international level and has, indeed, been a strong and continuing theme in the development of international norms in this area. The Discussion So Far ‘At this stage, it is worth summarising the tentative conclusions that can be drawn from the above discussion. First, determination of a particular term of yearsis an imprecise, even arbitrary, process, but the balance of argument and evidence points to the desirability of shorter rather than longer terms of protection, Secondly, there is, at least from the author's viewpoint, some justification for these terms exceeding the life of the author, but this may not be soin all cases and different terms may be appropriate for different kinds of works and subject-matter, particularly in the light of new technologies. Thirdly, there should be no provision for extensions of term in exceptional circumstances. Fourthly, uniformity in term, within the appropriate context, can provide certain advantages. Some Special Cases There are several special cases that need to be considered in any discussion of the copyright term. These are moral rights and unpublished, or undisclosed, works. Both raise their own particular problems. Moral Rights For the last 60 years, it has been accepted at both the national and intemational Jevel that authors’ rights also comprise a non-economic and Personal element. These are moral rights, of which the most important are the Tights of disclosure, attribution and integrity. These rights have their basis in 47 See further the discussion ofthis in relation to the European Community in Dietz, supra note 32, at 168 et seg.™m Ricketson TIC Vol. 23 the personal connection of authors with their works and the interest that they have in controlling the way in which their works are divulged to the world, in maintaining their association with those works once these are before the public, and in ensuring that the integrity of their works is respected by third parties. Although the philosophical justifications for moral rights are various, their provenance can be traced back as far as the writings of Immanuel Kant, who spake of the need for the opinions of authors to be disseminated accurately and in accordance with their true intentions.” A late twentieth century explanation for such rights might be couched in the terms of the need for “truth in advertising”.” For the purposes of our present discussion, the question is, should these rights endure as long as the economic rights in a work? Alternatively, should they last longer? The interests protected by moral rights are, on the surface at least, quite different from the economic interests of the author in the exploitation of his or her work. National systems divide as to how they view this issue and no clear guidance on this is to be found at the international level.” Thus, some countries view moral and economic rights as inextricably linked, with the consequence that the term of protection should be the same for both. Others see the two sets of rights as quite distinct, and find no reason why their duration should be coterminous.” Finally, a number of errant countries (including Australia and the United States) do not recognise moral rights expressly and purport to give effect to their international obligations in this regard by providing protection (usually inadequetely) under other heads. Whatever view is taken, however, itis difficult to deny that different 48 On the background and development of moral rights generally, see S. STROMHOLM, “Le droit moral de Teuteur en droit allemand, francais et scandinave” (Three Parts) (Norstedt and Soners, Stockholm, 1966~1971), in particular Part I; Dietz, supra note 32, chap.V; “Le droit moral dans les pays de Union”, 1929 Droit d'auteur 140, 123, 1931 Droit d'auteur 98, 114, 122, 1932 Droit d'auteur 112; M.A. Roepsn, “The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators”, 53 Harvard Law Review 554 (1940); W. STRAUSS, “The Morel Right of the Author", 4 American Journal of Comparative Law 506 (1955); R. Sannaure, “Current Theory on the Moral Right of Authors and Artists under Fréach Law”, 16 American Journal of Comparative Law 487 (1968); R. Da Siva, “Droit Moral and the Amoral Copyright”, 28 Bulletin of the Copyright Society of the USA 1 (1981). 49D. Vaven, “Authors Moral Rights and the Copyright Law Review Committee's Report: ‘Whhljther Such Rights Now?", 14 Monesh University Law Review 284 (1988). 50 Berne Convention, Art. 6, S1 Dietz, supra note 32, at 67. 52 In reletion to Australia, see S. RuckeTson, “Is Australia in breach of its international obligations with respect to the protection of moral rights?”, 17 Melbourne University Law Review 462 (1990). Asto the USA, see D. Nnewer, “The Berne Convention Implementation Act of 1988", January Supplement to “Nimmer on Copyright Law” (Matthew Bender, New ‘York, 1989);1.C. Gniswurc & IM. Kensocian, “One Hundred And Two Years Later: The (Conid, on page 73)No. 6/1992, The Copyright Tern 7 considerations appear relevant when the duration of moral rights protection is discussed. Thus, the desire of an author to be associated publicly with the opinions embodied in his or her work and to ensure that these are presented acourately remains just as strongly after the alienation of economic rights asit does before. Itis less clear, however, how long these concerns remain of relevance to an author. Although some national laws provide for the retraction of earlier Works, itis arguable that all an author can reasonably expect, once his or her \work has been publicly disclosed, is that it continues to be presented correctly as embodying the opinions that were held by him at that time. As long as the author lives, the possibility of issuing a corrected presentation alvays remains. Yet while it may be agreed that authors’ concerns for the protection of their moral interests can last as long as they lve, itis far from clear why such protection should endure after death. To what extent can beneficiaries and successors in title give effect to the intentions and feelings of authors on matters which are so intensely and innately personal in character? Agein, does the continued need for attribution serve any useful purpose once an author is dead and buried? Respect for the memory of deceased creators is 2 laudable concern, but the reality may be that moral rights are used by beneficiaries and successors in title for the protection of their own sensitiviticg rather than those of the deceased author. There is also the danger that post mortem auctoris controls over these matters may lead to the cultural atrophy referred to above where famous works cannot be reinterpreted by later creators, even though the latter may have acquired the economic rights necessary for this purpose or the work may have actually fallen into the public domain. Post mortem protection of moral rights therefore appears to require justifications distinct from those that are advanced for the post moviem Protection of economic rights. A possible vindication might be found in a Tewarking ofthe incentive arguments examined above in respect of economic Tights: authors will be less inclined to create if they feel that their memory will Rot be honoured after their death. However, such an explanation would be extremely difficult to assess in objective terms, particularly in light of the fact that authors have continued their creative activities apparently unhampered in those common law countries that lack any effective post mortem anon Protection of moral rights. | Another justification can be mounted in terms of the public interest. There is, at leest in the case of some works, a wider Public interest in the maintenance (Cent, from page 772) US Toins The Berne Convention”, 13 Columbia-VLA Journal of Law and the Arts 1 (988); 0.6, Haren, “Better Late Than Never: Implementation of The 1885 Berae Convention” 22 ‘Comell International Law Journal 171 (1989).7A Rickesson TIC Vol. 23, of respect and attribution that transcends the interests of would-be users. ‘While the public domain forms a necessary common pool for later authors and creators to draw upon, thereis also a need to preserve the integrity and purity of works that have become cultural icons.* It is possible to extend this, argument to works generally, as the maintenance of their accuracy and authenticity serves the useful object of preserving the record of a country’s past. However, this need does not justify a continued and complete control over the way in which works of deceased authors are used, particularly if the economic rights therein have ceased. The result may be censorship, as well as cultural atrophy, and these dangers are accentuated if control is placed in the ' hands of “disinterested” public officials rather than family and successors in title. After the death of an author, it is perfectly possible to preserve the authenticity of his or her works without allowing the all-embracing moral rights controls that may be accorded to him or her while alive. Thus, authentic copies and fixations of performances of works can be kept for posterity, without placing limitations on the way that these works may be interpreted or used by other parties. In this way, cultural diversity is encouraged as old works are reinterpreted and adapted, but it remains possible to go back to the original as it will reside in some sort of national archive. Preservation of this kind is, by its nature, a public function, and it should “therefore be leit to cach country to determine how best thisis done. However, it is quite possible to do so without imposing the kind of aesthetic and cultural controls that are implicit in post mortem moral rights protection. In very exceptional cases, it may be possible to justify such controls where, for patriotic, religious or balance of trade reasons, the works of a particular author have become particularly identified with the national psyche.*$ Such 53 See, for example, the anguished plea for extension of protection in the case of Norwegian creators such as Ibsen, Skramn and Grieg by O. Lip, “Twilight of the Classics", 8 RIDA 85 (1955). ‘54 It should also be borne in mind that recreation of the original form of works remains a strong, creative urge in itself so far as performers and artists are concerned. A good example isto be found in the building of the Swan Theatre at Stratford on Avon for the performance of Tacobean and Restoration plays; ancther is to be seen inthe devoted efforts to recreate the original Globe Theatre of Shakespeare in London. 5 The decision of the UK Parliament to give the Great Ormond Street Hospital for Sick Children che right to a perpetual royalty for public performances, broadcasts, publication and cable diffusions of J. M. Barrie's “Peter Pan” is a good, if idiosyncratic, example of this: Copyright, Designs and Patents Act 1988 (UK), Sec. 301 and Schedule 6 and see also the brief commentary0on the nature ofthis “gif” by G. Dworxme& R. Tavior, “Blackstone's Guide to the Copyright, Designs and Patents Act 1988" 43444 (Blackstone Press, London, 1989). However, ifthe works of Victor Hugo had been preserved in rigid perpetuity by the French Government, the French people and the rest of the world would have been denied the entertsinment of the musical adaptation of “Les Misérables” which has packed theatres, fhrougbout the world since 1986.No. 6/1992 The Copyright Term 75 cases, by their very nature, will be so unusual that decisions to grant them this Jevelof protection wil inevitably be reached with a high degree of community support, Unpublished (or Undisclosed) Works ‘Thus far, our discussion of duration has proceeded on the largely unstated premise that the works in question have been published or otherwise disseminated to the public. Do different considerations apply to unpublished works? Should the protection of these works also be subject to temporal limitations or should they be protected indefinitely, until such time as publication or disclosure takes place? Furthermore, once these events occur, should the work receive an additional term of protection? By definition, unpublished works cannot be the subject of commercial exploitation so long as they are unpublished, and there can be no infringement of the author's moral tights during this period. The critical moment, both in commercial and personal terms, is that of publication itself, when the work is launched on the world. Thisis something in which both the author (if he or she is still alive) and the copyright owner (if this is someone other than the author) have avital interest, both pecuniary and non-pecuniary. The pecuniary is the need to maximise the returns from publication and the subsequent exploitation of the work. Thus, it is possible that author and publisher may wish to “time” the relezse of the author’s works, so as to ensure that the market is not saturated and the writer “written out”. On the other hand, the non-pecuniary concern is essentially that of the author, who wishes to ensure that the work reaches the public (or is “divulged”) in accordance with his or her wishes. In this respect, the author’s concerns also involve privacy and reputational interests that are acknowledged in differing degrees in most legal systems under heads of protection other than copyright. There is also a wider public interest that applies to all categories of unpublished works. If works remain unpublished indefinitely or for Jong periods, an indeterminate body of information remains outside the area of 56 Athough there may be contravention of the author's right to divalge his or her work if the ‘opytight owner is someone other than the author and this person refuses to publith the work at the author's request 57 Tins, in 1891, Edomund Gosse gave the following public advice to the young Kipling whose works had been flooding @ voracious English, European and American market in the preceding year: “Go east, Mr Kipling, go back to the Fer Eest. Disappear... Come back in ten years time with another precious and admirable budget of loot out of wonderland.” C Caxanicton, “Rudyard Kipling” 230 (3¢ ed., 1978) 58 Tis is oot to sey that publishers and literary executors cannot feel deeply concerned about the way in which authors’ works are disclosed to the world. An example is Robert Ross, the Literary executor of Oscar Wilde: sce further R. Euuewann, “Oscar Wilde” 552-553 (Penguin Books, London, 1987).1% Rickesson TIC Vol. 23 public awareness, The common pool of facts, ideas and knowledge is to this extent reduced, and one of the objects of copyright protection is therefore defeated. In determining what term of protection should be applied to unpublished works, enother objective therefore emerges: the need to encourage the ultimate disclosure of such works. How is this to be achieved? 1. One possibility is to accord protection for the same period of time as for disseminated works. Thus, if the work remains unpublished during this time, there will be no protection if disclosure occurs subsequently. This approach has the advantage of certainty, in that all works will notionally enter the public domain at the same time, even though the possibility remains that other civil __ forms of protection may be available so long as the work stays unpublished, forexample, through an action for breach of confidence or trust, infringement of privacy or unfair competition. Furthermore, if a work is undisclosed (and thus unexploited) during the author's lifetime, it is difficult to see what effect the possibility of indefinite protection post mortem auctoris will have on him or her. Any decision to publish posthumously will be made by a successor in title, who will be more likely to do so within the term of copyright remaining in order to reap what commercial advantage may be obtained from the work. 2. The other alternative is to allow protection indefinitely, and to grant a further fixed term once publication (or other public disclosure) has taken place. The argument in favour of this approach is that the additional term of protection provides an incentive for disclosure to occur, that is, a publisher will be more likely to undertake this if there is some security for his investment. In the absence of such protection, however, worthy works will remain hidden from view and the public will therefore suffer. The disadvan- tage of the approach is that it may confer protection on the works of authors many years, or even centuries, after they have died, and long after the reasons for any personal sensitivity have disappeared. This may not be too severe an imposition on the publicif the term of post-publication protection is relatively brief. ‘A more substantive objection, however, is that where ownership of the copyright and ownership of the unpublished work itself have become separated, this can place severe restraints upon later users, in particular those engaged in research and scholarship. Often the identity of the copyright owner will be unknown and difficult to ascertain, but publication or use of that material will rua the risk of an infringement action. Finally, if the publication of such material involves considerable cost and effort in relation to such matters as editing, translation and preparation, it is very likely that this work itself will constitute an original intellectual production for the purposes of copyright protection or, altematively, will be eligible for protection under some form of neighbouring rights regime. If such protection is available in any event, there is no reason for the grant of further protection in relation to the original unpublished work, so long as physicalNo. 6/1992 Copyright Term access to the latter is allowed. The matter of access, however, seems an issue for national archives or heritage policy, rather than for the lew of copyright. Both approaches outlined above seek to achieve the same objective, namely the ultimate publication or disclosure of works, but adopt directly contrary methods for accomplishing it. In the absence of empirical evidence as to which is the more effective, the intuitive response must be that limited protection is the more likely to succeed, particularly if there is protection for Eny subsequent intellectual effort and/or investment that is expended in the preparation of an unprotected work for publication. The International Dimension Discussion of the desirable term of protection cannot take place in a legal yacuum: it has to be tempered by reference to the international obligations that bind most nations in this area. The international norms here are, in fact, quite specific and leave little room for national variations, at least down- ‘wards, The historical development of these normsis also notable for an almost complete absence of debate of the policy and theoretical issues involved. As the Beme Convention for the Protection of Literary and Artistic Works is the oldest multilateral instrument containing prescriptions in this regard, and ‘now binds some 85 countries,” this will be the only convention considered below. The Universal Copyright Convention also contains certain stipulations asto term,® but these are shorter than those prescribed by Berne and will not be discussed. The Berne Convention The General Term of Protection Prior to the Berne Convention, the terms of copyright protection under national copyright laws were marked by a high degree of diversity, even as between different categories of works. These differences continued for a Jong time after the formation of the Berne Union, and it was not until the Brussels Revision Conference of 1948 that the term of the life of the author plus 50 years became the mandatory norm which all signatory states to the Bruseels text were to apply henceforth to works claiming protection under the Convention. However, this was only the culmination of a sustained campeign for longer terms which had begun over fifty years earlier at the 59 As tJune28, 1990 when Malaysia deposited its instrument of accession, thus becoming the 5th member of the Berne Union on October 1, 1950: 1990 Copyright 211 6 Ar. IV@) and G). 61 For a general account of these cational differences, see Ruckerson, supra note 5, at 10-2. 2 @ An 70). fe78 Ricketson. IC Vol.23 behest of various authors’ and publishers’ organisations such as ALAI and the IPA.© These proposals had secured the early support of such nations as France, and the 50 years post mortem auctoris term was duly recognised as the desirable (but not obligatory) international norm for the term of protection in the Berlin Revision of 1908. However, it was not until the time Of the Brussels Revision some forty years later that this term had been adopted by a majority of contracting states. “ Given the differencesin national Jaws that had previously existed, this must be regarded as a considerable triumph in the use of international agreements 25 a means of educating national legislators and changing national laws. On the other hand, in the debates which took place at the various Berne revision conferences on the question of duration, one is hard pressed to find reasoned justifications for the move for longer terms of protection. The 50 Years post mortem auctoris term was taken, by its proponents, as a self-evident “good” that needed little explanation, and the onus was Clearly placed on countries with shorter or restricted terms to justify their deviance irom this standard. Such arguments, however, were not readily forthcoming, and one is left with the impression that the shorter term countries had no cleat reasons to justify their position or to explain their reluctance to adopt the longer uniform term that was proposed. This is particularly true of the UK which, as the leading common law member state of the Berne Union, might have been expected to adopt a more sceptical and pragmatic view of the arguments for a longer term. Indeed, it is strange that this country — in which questions of duration had, in the past, drawa forth such vigorous debate — should have been so hesitant about defending its position in the international sphere.® Perhaps this is no more than a reflection of the parlous state into which British copyright law had fallen by the beginning of the twentieth century and a consequent reluctance on the part of British officials to defend any aspect of it in international gatherings, On the other hand, the Berne Union at this time lacked the eloquent arguments of a Macaulay as @ counterbalance to the strong pressure that was brought to bear in favour of a 63 For the texts of relevant resolutions passed by these organisations in the 1890s and eazly 1900s, ee Actes de le Conférence de Paris de 1896, a $3 (International Office, Berne, 1897) and Actes de la Conférence de Berlin, at 82 (International Office, Beme, 1906). The ‘crowning effort for ALAI was its firm proposal for a 50-year post mortem auctoris term, the project of revision that it adopted at its Congress in Neuchatel in 1907: see further Actes in 1908, at 82. 64 Actes 1908, at 178, 185, 200, 239. 65 Berlin Act 1908, Art. 7(1). 66 See generally RickETSON, supra note 5, at 328-333. 67 See, for example, the instructions of the British Foreign Secretary, Sir Edward Grey, to the British delegates atthe Berlin Revision Conference, reproduced in RICKETSON, supra note 5, at 328,No. 61992 The Copyright Term ™ ipnger term, The inevitable conclusion therefore must be that the adherents werthe latter view had readily won the higher moral ground in their campaign tnd had their opponents at a tactical disadvantage. In retrospect, however, the Brussels Conference now appears as the high Water mark in the international movement to obtain longer terms of protection. While proposals to inerease the mandatory minimum term were Mipde by 2 Committee of Experts prior to the Stockholm Revision Confer- ive. these proposals withered away in the course of a revision conference that gaw some sweeping attacks made on the principle and scope of copyright protection by representatives of the developing countries.® Alll that resulted Prom the Conference was a resolution that gave general support to the principle of longer terms and proposed that negotiations fo this end should be rficied by member countries with the aim of formulating a Speciel rrangement under the Convention.” To date this has not happened, fithough a number of bilateral reciprocal agreements do exist between countries with terms of protectioa that are greater than SO years post moriem auctoris.™ On the other hand, the draft Protocol to the Convention which was adopted it the Stockholm Conference did actually recognise, for a brief time, the possibilty of shorter terms in the ease of developing countries. This arose out BF proposals made by these countries for recognition of their special needs,” of propeiited in 2 provision of the Protocol which permitted developing countries, for the first ten years during which they were a party to the Convention, to substitute shorter post mortem auctoris terms for ‘those provided in Art. 7.2 This was intended as a transitional arrangement which Geveloping countries might use prior to ‘becoming bound by the full rigour of the Stockholm text. However, the Stockholm Protocol never came into operation, and was revised four years later in Paris. In the Appendix which was then adopted, there was no provision dealing with the shortening of the term of protection, and the provisions of Art. 7 therefore remain fully applicable to any country, developing or ‘otherwise, that accedes to the Paris text of the Convention. 68 1961 Droit d'auteur 56; 1962 Droit d'enteur 175. 9 See generally RICKETSON, supra nat §, chapter 11 for the background 10 these develop: men’s. 20 Records of the Sntelectuel Property Conference of Stockbolm, June 11 to July 4, 1967, Vol. I, 898 (WIPO, Geneva, 1967). 11 See Ruexetson, mupra note 5, at 356-361 (Table of national terms of protection). “2 See goneraly RICKETSON, supra note, chap. 11. 73 Protoeol, Art (2). This permitted developing countries to subsite a minima term ofS Sense pon morte autos forthe general erm of50 years p-m-c. prescribed under ATE 70) sear imum of 10 years forthe terms that are prescribed under Art. 7(4 for photogrephic ‘works and works of applied art.780 Rickeson HC Vol, 23 Special Terms of Protection While Art. 7(1) of the Paris text stipulates 50 years postmortem auctoris as the standard minimum term of protection for works generally, other provisions of the same Article provide for shorter terms of protection for certain categories of works, These provisions indicate that, even in a document as universalist in ambition as the Berne Convention, it has long been accepted that a blanket term of protection is either unattainable or inappropriate in particular instances. The categories of subject-matter specifically dealt with in Art. 7 are photographic” and cinematographic works,” and works of applied art." Each of these is a category of work the status of which has long been the subject of marked differences in the domestic copyright laws of member states. Accordingly, the minimum term of protection to be accorded by Berne members to photographic works and works of applied art is only 25 years, while the provision governing cinematographic works takes acoount of the national differences that exist as to the character of these works. Special provisions of an essentially procedural character also apply in the case of anonymous and pseudonymous works” and works of joint authorship,” but do not give rise to any particular issue of principle for the purposes of our present discussion. Moral Rights As might be expected, the relevant provisions of the Berne Convention (in ‘Art. 6%) are neutral on the questions of the juridical nature of these rights and their duration. While the protection of moval rights has been a conventional obligation since the Rome Revision of 1928, this obligation has been subject to. number of careful qualifications to meet the concerns of those member countries (chiefly those with common law systems) that have no juridical conception of these rights,” Although the requirement to protect moral rights has been gradually strengthened in successive texts of the Convention (at Brussels in 1948 and Stockholm in 1967), it only extends to the rights of attribution and integrity. While the independence of these rights from the economic rights is recognised, the issue of alienability is left unsettled and itis also accepted that moral rights may be protected under other heads than copyright law.® Finally, Art. 6°(2) leaves member countries free to protect such rights for the same period as the economic rights, or for longer, if they so 74 Ant. 7(4). 75 Art. 2(2). 76 Ar. (4). 77 An. 7). 78 An. 7%, 79 See generally RickETSOS, supra note 5, at 456-467. 80 Records of the Stockholm Conference, Vol. Il, 1159 (Report of Main Committee 1),| |e. 61992 The Copyright Term 781 ish. It also gives them flexibility as to the way in which these rights are to be protected post mortem auctoris: thisis left entirely as a matter for national aw eyich may choose to confer these rights on family members, successors in dle, authors’ organisations or some public official or authority. The provision ‘herefore accommodates, in part, the suggestion made above that moral {ights in the post mortem auctoris period are not necessarily the province of \ fhe author's family or legal successors. On the other hand, itis till clear thatit | sthe author's moral rights that are to be protected in this period (at least until ‘he expiry of 50 years) and not the interests of the wider public in the [preservation of national culture. As suggested above, the atteinment of this [foal of preservation can still be consistent with uses that cut across the | eceased author's moral rights, for example, the making of new interpreta- fons ot adaptations of works. Under Art. 6(2), however, such uses stil fall |yithin the scope of the deceased author's moral rights, even though the conomic rights in the work in question may have been licensed or assigned to the later interpreter or adaptor. The Impact of Technological Change and the Question of Treaty Compliance ‘A further matter relevant to the question of term concerns the impact of technological change and the potential problems that this raises in relation to compliance with the obligations imposed upon member states by Art. 7of the Berne Convention." Technological change has now made it possible to isceminate works on ascale that would have been impossible to foresee even at the beginning of the century. At that time, the circulation of printed copies ‘vas the chief means of exploiting copyright, and non-material disseminations ere limited to performances by human actors. Ninety years later, works can be stored, retrieved and reproduced in a staggering Variety of ways, while satellites, laser technology and computers enable them to be communicated throughout the world instantaneously. The potential pecuniary gains to copyright owners are enormous, but a paradox is immediately apparent. While the new technologies open up new dad unexpected fields of exploitation for rights owners, they have frequently made it impossible for them to control these new modes of exploitation cifectively. The development of the technique of reprographic reproduction is one example; others are to be found in the invention of better machines for off-air recording and dise-to-disc copying of sound recordings and films. The See futher oa this phenomenon: B. RisceR, “Copyright and the future of authorship" 197 Copyright 155; G. Kouwantos, “Challenges and promises of the mass media for copyright 1981 Copyright 16; S. SrewAR7, supra note 40} M. Ficsor, “Technological progress and er tendencies in copysight”, 1982 Copyright 104; D. Lapp, “To cope with the world upheaval in copyright”, 1983 Copyright 289; A. Kersver, “Is copyright an anachronism”, 1983 Copyrigh 368.72 Ricketson TIC Vel. 23 impossibility of individual authors exercising effective control over their copyrights in these situations has led to a number of responses et the national level, including the development of collective administration of rights, the introduction of compulsory licence schemes and the imposition of levies or charges on the means of reproduction or dissemination. To copyright purists, such solutions can only be justified as last ditch measures, to be employed where all other attempts at control have failed. More importantly, their adoption poses challenges for traditional conceptions of authors’ rights, as the latter are steadily transformed from rights of exclusion to simple rights to remuneration.” . ‘The issue of treaty compliance that arises bere is as follows. Do such'licensing schemes, etc., constitute restrictions or fetters on the terms of protection that are prescribed under Art. 7? There can be little doubt that such schemes, even if they are the only viable means of remunerating copyright owners in specific cases, run directly counter to the letter and spirit of the. Berne Convention, where the rights to be protected are defined in’exclusionary terms, and statutory licensing is only contemplated in a few limited circumstances.® Prior to the Brussels Revision of the Convention, theré was concern on the part of some member states that the post mortem auctoris compulsory licences provided for under the 1911 British Copyzight Act were unjustifi- able limitations on the 50-year post mortem period of protection.® This concern is even more justified today with the proliferation of compulsory licensing schemes under so many national laws. Given the impossibility of holding back the tide of technological progress, the answer may lie either in the reformulation of the character of the’ rights protected under the Convention or in the adoption of modified terms of protection that permit such restrictions. Implications for the Future ‘The intention behind this article has been to examine and challenge some of the views about the length of the copyright term that are commonly adopted at both the national and international levels. Another purpose, however, has been to suggest certain lines of inquiry for the future. As the preceding section makes clear, modifications to national laws can only be made within 82. See further W, NonDeMann, “A Right to Control or Merely to Payment? Towards « Logical Copyright System”, 11 TIC 49 (1980), 83 Notably under Arts. 11%(2) and (3) (broadcasting) and 13 (mechanical reproduction of musical works and words). See further RickETSON, supra note 5, chap. 9, ia particular 513 et seq. 84 Secs. 3 and 4, 85 See further on this matter RIcKETSON, supra note 5, at 330-331.LT No. 6/1992 The Copyright Term 783 the framework of existing international obligations; it may therefore be : necessary for any move for change to occur within that framework first. Asamatter of history, itis notable that wider questions of policy have seldom come to the fore in debates over the term of protection within the Beme Union. There has been little sustained discussion of the economic, social and cultural issues involved, and the steady trend towards longer terms has remained largely unquestioned. The mandatory 50-year post mortem auctoris period of protection achieved at the Brussels Revision represeats the high point in this process andis, infact, an astonishing accomplishment. Itnow sets the international minimum that Union countries must attain and has brought about a very high uniformity of term among countries which less than a century ago had widely differing terms of protection. It therefore represents the success of an idea, rooted in natural Jaw concepts, that authors have a natural right of property in the fruits of their creative endeavours. That it has suoceeded so well at the international level, with a comparative absence of competing theories, is a tribute to the skill of its proponents.,.As the logical conclusion of such an apptoach is the longest copyright term that is politically feasible, there is no particular need to justify the final choice of 50 years post ‘mortem auctoris: this is the best that can be obtained. On the other hand, in the light of its binding character as a matter of intemational law, it places a near absolute probibition on attempts to adopt shorter terms at the national level. Furthermore, once account is taken of the wider social, economic and cultural implications of prolonged terms of protection, there are good reasons to doubt that the 50-year term really does embody the desirable national or international norm. Some of these reasons are to be found in the arguments that have been reviewed above; others are to be found in more recent and current developments that change radically the background against which questions of duration now fall to be considered, What is required, therefore, are national and international studies that seek to ascertain, on a factual basis, the appropriate term for copyright protection, a kind of cost/benefit approach that seeks to evaluate the public and private costs and benefits of different terms of protection. It is hardly likely that such inquiries will provide precise conclusions. However, what they should do is to indicate the broad bands within which protection should be fixed. In carrying out these studies, the following considerations need to be bome in mind: 1. The 50-year post mortem auctoris period has never, in.any event, been applied completely to all works protected by the Berne Conventioa, and this may point the way for future revisions to the Convention. Thus, photographic works, works of applied art and cinematographic works are, at present, subject to special terms of protection. The reasons for this are various, but one important explanation is that this subject-matter is still regarded as being on the periphery of true “literary and artistic works”784 Ricketson MIC Vol. 23 both in national laws and consequently at the international level. This special treatment indicates that a similar approach could be taken to other categories of works presently or potentially protected under Art. 2(1). One category of work for which this approach would clearly be appro- priate is computer programs: while the growing practice in Berne countries is to protect these as literary works, the long term of protection that presently follows from this seems excessive for subject-matter which is often out of date and superseded within a few years. In a future Berne revision, there is no reason why computer programs should not be dealt with separately in Art, 7 along with films, photographs and works of applied art. The same might be true of other categories of works that do not require such lengthy protection, for example, compilations and data bases. Under this approach, it would be possible to retain a general minimum period of protection, but to remove the worst distortions that such a term produces when applied indiscriminately to inappropriate subject-matter. 2. Even if there are practical benefits that flow from the adoption of a general minimum term of protection, there should be some investigation as to whether the present term of 50 years post mortem auctoris should be shortened. For too long, this term has been treated as an unassailable and central tenet of the Convention faith. With the changes that are now occurring in the nature of authors’ rights, the old unstated assumptions need to be questioned and a fresh assessment of the factors that are relevant to the length of copyright protection should be made. The ‘commercial and practical reality now is that most copyrights are transfer- red by authors to intermediaries — publishers, producers, promoters and the like - who then undertake the marketing and dissemination of the work. In these circumstances, the interests of the author in relation to term become of secondary importance, and the real issue is what length of protection is necessary to ensure the continuance of investment by these intermediaries. So far as authors are concerned, it may be preferable for national and international reform to focus on the formulation of appropriate safeguards for the licensing and assignment of their rights. Shorter minimum terms might therefore be just as efficacious in stimu- lating decisions to invest, as well as the initial decision of an author to undertake the act of creation. Another alternative that is worthy of investigation is whether some form of statutory licensing (perhaps @ paying public domain scheme) could be adopted in the post mortem ‘auctoris portion of the present term of protection or for some part thereof, for example, the last 20 years. 3. Quite apart from the above, the growing transformation of many of the exclusive rights of authors (and their assignees) into mere rights to remuneration through the introduction of statutory licensing schemes and collective management of rights raises real questions of treaty compliance. Do such schemes constitute potential curtailments or restrictions on thereece No, 6/1992 Term of Protection of Copyright 785 terms of protection required to be accorded under Art. 7? If this is so, it will lead to an anomalous result in the event that such schemes represent the only practical way of enforcing these rights. It is therefore an issae that needs to be clarified in any future revision of the Convention. 4. The length of protection for moral rights, particularly post mortem auctoris, also needs reconsideration. Given the innately personal nature of these tights, should they continue to be protected after the death of the author? If thisis so, should they then be concerned with the preservation of the authentic character of an author's works rather than with the Provision of aesthetic controls over the way in which such works are caploited? These issues require careful evalvation and the wider socsl, culture and economic consequences of prolonged moral rights protection, need to be re-examined, None of the matters discussed in this article are easy to resolve, Far more {actual information is required before proposals can be formulated, and, ove eon ee wll only be crude approximations. Nonetheless, iis striking thet the Beme Union has never seen the kind of debates over the questice of Giration that so occupied British legislators in the nineteenth century Presect Circumstances are, of course, vastly different, but seem even more strongly to point to the need for national end international re-examination of the bose and term of copyright protection, Silke von Lewinski* EC Proposal for a Council Directive Harmonizing the Term of Protection of Copyright and Certain Related Rights As early as October 24, 1980, the EC Commission organized a hearing in i Brussels for interested circles concerning the harmonization of the tems cf : copyright protection." Yet the hearing was not followed by concrete meacores, ember of the Research Staff, Max Planck Institute for Foreign and International | Patent, Copyright and Competition Law, Munich, * GF ox this pict te Repor in 1880 GRUR Lat. 767, This hearing was held in connection with the Commission's activities inthe fed of copyright, of. especially Communication from the Commission to the Counc, “Community action inthe cultural sector” Bullets of EG Supplement 0/7; nd, ina revised version, supplement 9/1980 (se p. 20 et og) 7 © VCH Verlagsgeselischaft mbH, D-6540 Weinheim, 1992 Oo18-9855/92/0612-0785902.50/0