International Copyright Laws AND Their Effects

            The newly recognized copyright rights of authors soon proved inadequate.  With books and being smuggled across European borders by pack animals in the 18^th century and English novels crossing the Atlantic by ship, even where countries adopted some form of copyright protection, isolated, single-nation rights were of increasingly limited utility.

[1] 

Several movements toward international copyright protection arose, but only one proved influential or effective.

In 1878, authors, artists, publishers, academics and other interested parties, led by French author Victor Hugo, as its president, formed the Association Littéraire et Artistique Internationale (AIAI), and began to sponsor conferences and adopt resolutions, some of which proved to be significant.  AIAI advocated that the artist’s right to his work is a property right; that its duration should be a period of 100 years from the date of publication; that no formalities should be required for the protection of the copyrights; that foreign artists should be dealt with as nationals without condition of reciprocity; and that treaties for protection of artistic property should be separate from commerce treaties. More AIAI conferences were held over the ensuing years, toward “a general union which would adopt a uniform law in relation to artistic property.”

[2]

At the AIAI’s 1882 conference in Rome, a proposal for a multilateral convention was introduced by Dr. Paul Schmidt of the German Publishers Guild, to embrace the views of all interested parties – authors, publishers, booksellers, composers and music houses.  The conference adopted the proposition “that the office of the International Association should be responsible for taking the steps necessary to initiate in the press of all countries as extensive and profound a discussion as possible as to the possible formation of a Union of literary property and the proposal that, at a place and date to be fixed subsequently, a conference composed of organs and representatives of interested groups should meet to discuss and settle a scheme for the creation of a Union of literary property.”  It was also decided that the conference would be held the following year in Berne, Switzerland.

[3]

The conference in Berne was convened September 10, 1883 and those convened adopted a draft which included the concepts of national treatment of copyrights; the abandonment of formalities, other than those in the country of origin; definitions of literary and artistic works; and the protection of translations for the entire term of copyright.

[4]

The Berne Convention concerning the Creation of an International Union for the Protection of Literary and Artistic Works was finalized September 6, 1886.  On December 5, 1887, it was adopted by Australia, Belgium, Canada, France, Germany, Haiti, India, Italy, Liberia, Monaco, New Zealand, Spain, Sweden, Switzerland, Tunisia and the United Kingdom. Those original countries were later joined by Denmark (joining 1 Jul 1903), Japan (15 Jul 1889), Luxemburg (20 Jun 1888), Norway (13 Apr 1896) and Sweden (1 Aug 1904).

[5] 

Under the Berne Convention, member countries were required to provide the same protection to authors from other member countries as it provided to its own authors subject to minimum levels of copyright protection.  The original Berne Convention set no minimum for term of protection, leaving that task each of the member countries. 

In 1893, the United International Bureaux for the Protection of Intellectual Property (BIRPI) was established to administer the Berne Convention from its city of origin.  PIRPI moved to Geneva in 1960, for proximity to the United Nations offices there.  In 1970, the World Intellectual Property Organization (WIPO) was established to take the place of BIRPI, and in 1974, WIPO became a part of the UN.

[6] 

The Berne Convention was revised in 1908 to make the duration of copyright the life of the author plus 50 years, but that revision was not mandatory and member countries with a shorter term were allowed to retain their existing terms.  This revision – known as the Berlin Act – also forbade formalities as a condition of copyright protection.  The Berlin Act was signed on November 13, 1908 by member countries Belgium, Denmark, France, Germany, Italy, Japan, Liberia, Luxemburg, Monaco, Norway, Spain, Sweden, Switzerland, Tunisia and the United Kingdom.  The life of the author plus 50 years term was made mandatory for member countries in the 1948 revisions known as the Brussels Act.

[7] 

Currently 160 countries are members of the Berne Convention. The United States did not join until 1989, due its insistence on formalities such as notice and registration for the protection of copyrights.

The life of the author plus 50 years term  had been long advocated by France following the recommendations adopted by a series of AIAI conferences which argued for uniformity throughout the Union, most members of which had that term.  The recommendations included the term being calculated from the first of January of the year following the author’s death which resulted in the slightly longer term and would do away any potential disputes concerning the calculation of the term.  France formally proposed the term of life of the author plus 50 years at the Berne Convention in Berlin in 1908, because “copyright is the patrimony left by the author to his family; that such compensation adds very little to the cost of reproduction of the works; the literary progress has not suffered in France, England, Norway, Denmark and other countries which adopted the fifty-year term; and that the lower classes read contemporary works rather than works in the public domain, so that they shorter term does not benefit them.”

[8] [9]

Extension of the term to life plus 50 years was reviewed by the Berne Convention in 1961 and 1962 and, while there was an initial proposal of life plus 80 years, a subsequent proposal of life plus 65 years, ultimately the issue was left to be addressed by Special Agreement amongst countries under Article 20 of Berne. At the Stockholm conference of 1967, the term was left at life plus 50 years, but is was agreed that “Considering that certain countries have expressed a desire for the term of protection to be extended . . . that negotiations should be continued between countries concerned for the conclusion of a Special Agreement on the extension of the term of protection in countries parties of that Agreement.”

[10]

The Council of the European Communities (EC) undertook a review of whether the term of protection should be extended, resulting in a March 23, 1992 report finding that: “the minimum term of protection lain down by the Berne . . . was intended to provide protection for the author and the first two generations of his descendants  . . . the average lifespan in the Community had grown longer, to the point where this term is no longer sufficient to cover two generations.”  It found further that several countries had adopted terms longer that life plus 50 years.  The Commission recommended that the terms be harmonized with the adoption of the term of life of the author plus 70 years or 70 years after the date of publication and for related rights (e.g. music, films, etc.) of 50 years from the date of publication.

[11]   

The Economic and Social Committee of the EC recommended that the Commission adopt life plus 50 years instead of life plus 70 years.

[12]

The EC issued a Directive on October 29, 1993 to harmonize the terms of protection to life of the author plus 70 years for literary and artistic works and 50 years from the date of publication for related rights.  The basis was that having differences in terms could impede the free movement of goods and services and that due to longer lifespan, the term of life plus 50 years did not cover the author and two generations of his descendants.

[13] 

There are currently 35 countries in the world that have a term of life plus 70 years including the US, UK, Germany, France, Italy and Switzerland.  Two countries that have longer terms – Mexico (life plus 100 years) and Guatemala and (life plus 75 years).

In 1996, the WIPO Copyright Treaty was adopted which had in its preamble:

“Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible, .  .  .  Recognizing the profound impact of the development and convergence of information and communications technologies on the creation and use of literary and artistic works, . . . Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention.”

[14]

In 2004, the European Commission reviewed making the terms of protection for the related rights life plus 70 years as well and it found “it seems that public opinion and political realities in the EU are such as not to support an extension in the term of protection, some would even argue that the term should be reduced.”  It was recommended that this be further monitored and studied.

[15]

Three countries led the way toward extending the term of protection:

United Kingdom:The Statute of Anne provided for a term of 14 years with a 14-year renewal term, if the author were still alive.   By 1841, the term of protection was expanded to the life of the author or 28 years, whichever was longer. 

On January 29, 1841, Member of Parliament Serjeant Talfourd submitted a bill in the House of Commons to extend the term of copyright to life of the author plus 60 years.  On February 5, 1841, that bill was rejected by a vote of 45 to 38 after Thomas Babington Macaulay made a lengthy speech in opposition including the following:

“The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. . . . It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.  . . .  The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honorable and learned friend doubles, triples, quadruples, the tax, and makes scarcely and perceptible addition to the bounty.”

On March 3, 1842, Lord Mahon proposed a bill to extend the term of copyrights to life of the author plus twenty-five years and at a hearing for it on April 6, 1842, Macaulay stated in part:

“I had no objection to the principle of the bill of last year. I have long thought that the term of copyright ought to be extended.  .  . .   We are equally desirous to extend the protection now enjoyed by writers. In what way it may be extended with most benefit to them and with least inconvenience to the public, is the question.  .  .  .   My plan is different. .  .  .   I propose to add fourteen years to the twenty-eight years which the law now allows to an author. His copyright will, in this way, last till his death, or till the expiration of forty-two years, whichever shall first happen.   .  .  .   I feel the firmest conviction that my noble friend’s bill, so amended, will confer a great boon on men of letters with the smallest possible inconvenience to the public.”

With the Copyright Act of 1842, the UK introduced the “life-plus” principal for copyright terms and adopted the terms of 42 years from the date of publication or life of the author plus 7 years, whichever was longer.  The 1842 Act also made copyright registration the only prerequisite to bringing an infringement action.  The UK’s Copyright Act of 1911 extended the term to life of the author plus 50 years and eliminated the registration requirement.

[16]

On January 1, 1996, the UK adopted life of the author plus 70 years after the EC’s 1993 Directive enacting that term of protection.  There is currently an effort afoot in the UK to extend the term of protection of musical works from 50 years to life plus 70 years.

Germany:  As noted above, it was a German publisher who first proposed the multilateral convention for copyright protection that would later become the Berne Convention and set the standard throughout the world for copyright protection. In 1867, Germany adopted as the term of protection the life of the author plus 30 years.  In 1934, Germany extended its terms to life plus 50 years and, in 1965, adopted its current terms of life plus 70 years.

France:   France, the birthplace of Victor Hugo, a moving force in the early period of reciprocal international copyright rights, adopted the term of protection of life of the author plus 50 years in 1866. In 1997, France extended its protection to life plus 70 years.