overview

variations

Australia

New Zealand

expiry

comparisons

related
Guide:

Intellectual
Property

     overview

This profile supplements the discussion of copyright duration in our Intellectual Property guide.

The profile is restricted to copyright protection. Patent and trademark protection is generally for considerably shorter periods but in contrast to copyright is usually renewable.

     coverage of this profile

This profile has five parts -

• variations - differences in the duration of copyright across different jurisdictions
• Australia - a snapshot of protection, where photographs for example are protected for shorter periods than artworks or graffiti created with a pen or brush
• New Zealand - a similar snapshot of the duration of copyright protection in
• expiry - ownership by everyone and no one, because the period of protection has ceased or because they have a special status, for example US government publications.
• comparisons - a perspective on the duration of copyright protection by looking at the changing term of protection for patents.

It is indicative only and regimes in particular countries involve peculiarities such as France's provision of extra protection to account for the Second World War (which is regarded as lasting from 1939 to 1948).

     evolution

The 1710 Statute of Anne - the foundation of Ango-American copyright law - provided protection for a mere fourteen years (the term of two apprenticeships), renewable for another forteen years if the author was still alive. The shortness of the period is not particularly surprising, given the newness of IP as a concept and the short lifespan of most people. The duration of protection has grown since that time.

The UK Literary Copyright Act of 1842 for example introduced the 'life-plus' principle, granting British authors rights to their work for life plus seven years (or for forty two years, whichever was longer). In 1867 German legislation established protection for writers on the basis of life plus thirty years, extended in the 1930s to life plus fifty.

In 1906 Samuel L Clemens (aka Mark Twain), in testimony supporting proposals to extend the term of US copyright from forty two years to life plus fifty years, commented that

I am aware that copyright must have a term, must have a limit, because that is required by the Constitution of the United States, which sets aside the earlier constitution, which we call the Decalogue.

The Decalogue says that you shall not take away from any man his property. I do not like to use the harsher term, "Thou shalt not steal." But the laws of England and America do take away property from the owner. They select out the people who create the literature of the land ... I do not know why there should be a limit at all. I am quite unable to guess why there should be a limit to the possession of the product of a man's labor.

Around 100 years later Richard Stallman said

I think the term of copyright should be around 10 years after publication for novels, and maybe 20 years for feature films, to provide sufficient incentive. Nowadays, most books are remaindered soon, and out of print in three years. Very few books remain in print for 10 years, and those that do have already been big successes. So a 10-year copyright term would be enough to keep the publishing business going and to keep authors getting paid.

It is unclear whether Mr Stallman's assessment of publishing economics is based on comprehensive figures or is mere assertion; works such as Harold Vogel's Entertainment Industry Economics (Cambridge: Cambridge Uni Press 1998), Albert Greco's The Book Publishing Industry (Boston: Allyn & Bacon 1997), Robert Picard's The Economics & Financing of Media Companies (New York: Fordham Uni Press 2002) and Richard Caves' Creative Industries: Contracts Between Art & Commerce (Cambridge: Harvard Uni Press 2002) suggest that reality is far more complex.

A snapshot of how copyright protection in the UK has advanced is -

In the US the duration of copyright under the Constitution and Copyright Act of 1790 was based on the "average life span" of authors: an initial forteen years (on the UK model) with the possibility of renewal for a further forteen years if the author was still alive. Thomas Jefferson had consulted his actuarial tables and proposed to James Madison that authors should have an exclusive right for nineteen rather than forteen years.

In 1831 the term was extended to twenty eight years with the possibility of renewal for another forteen years. In 1909 it was extended to twenty eight years with renewal for another twenty eight years.

The duration of protection for works by individual authors (ie not collective works by film studios) finally reached life plus fifty years in the US in 1976. Extension to the author's life plus seventy or more years has been criticised as establishing a monopoly that is in force for four generations, assuming that a generation is twenty years, and that benefits corporations rather than individual creators. Proponents of extension often refer to tables such as that above in responding that most people in advanced economies simply live longer than in Jefferson's time.

In February 2004 the Australian government announced that protection in Australia would be extended to life plus seventy years, as part of implementation of the Australia-US Free Trade Agreement. Legislation to give effect to the announcement attracted some criticism, with opposition by the Democrats and others in the Australian Senate, but the copyright provisions of the US Free Trade Agreement Implementation Act 2004 passed following the 2004 federal election and are now in effect.

     variations

The 'life plus x years' model is primarily concerned with original works; protection for published editions and performance is often shorter.

Reciprocity means that in some countries a 'law of the shorter term' places imported books and other works in the public domain at the same time as they expire in their 'home' country, if that is a shorter time period.

Other variations affect the treatment of works created by multiple authors, works authored by organizations rather than individuals, works not published until after the author's death and imported publications.

In the EU copyright in recorded performances ceases after 50 years, in contrast to the US regime of the performer's life plus x years. Recordings by notables such as Henri Salvador and Charles Aznavour thus went out of copyright during their lifetimes. Salvador lamented in 2006

It is a scandal. They are selling off cheap my name, my image and my old recordings, mixing them up any old how how and I cannot do anything to stop it. I would point out that I am still alive.

French technocrat, intellectual, banker and music executive Jacques Attali, author of Noise: The Political Economy of Music (Minneapolis: Uni of Minnesota Press 1985), responded that "I am putting an artist within the reach of wallets in all legality, and I am extending his fame".

Overall there has been a strong national and international trend to longer protection of copyright. The 1905 Australian Copyright Act, for example, offered protection for a flat forty two years or for the author's life plus seven years. That has been progressively extended and in many instances the period is now life plus seventy years.

     Ownership v authorship

The 'life plus x years' model is tied to the life of the author of the work - for example a novelist or songwriter - and is unaffected by changes to the ownership of the copyright. When an investor buys the copyright from an author, for example, the 'life' remains that of the author - not that of the investor. That prevents the sort of perpetual copyright protection alluded to by Clemens, with authors transferring ownership to their grandchildren, who in turn transfer it to their great-grandchildren and ...

     multiple authors

Some cultural production involves several 'authors', ie individuals who are considered to have primary responsibility for the existence and shape of that text, film or other entity.

The duration of protection for such works generally extends for a period of x years from the end of the year in which occurred the death of the last surviving author. English law for example protects films for 70 years from the end of the year of death of the last surviving principal director, screenwriter and composer of any music specially written for and used in the film.



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