links & tags
This page considers the duration of intellectual property
protection, in particular that of copyright.
It covers -
- what is duration and why does it matter?
long does copyright last?
- debate about extended protection in the EU and US
(eg the CTEA or 'Sonny Bono' Act)
a glance - pointers to a profile
identifying protection in Australia, New Zealand and
Preceding pages of this guide have noted that intellectual
property encompasses copyright, patents, trademarks, plant
variety rights, designs and other protection for creativity
The period during which protection is provided depends
on the type of intellectual property (copyright for example
generally provides a longer protection than that under
designs legislation). It also depends on the particular
jurisdiction. Overall, intellectual property protection
- like love - does not last forever.
Arguments that it is a monopoly often skate over the fact
that it is a short-term monopoly with significant exceptions
(eg in copyright for fair dealing or fair
use), although perceptions of significance depend
on where you are located in the intellectual property
how long does copyright last?
Protection usually lasts for the life of the author plus
x years or for x years from first publication in the case
of content (such as films) created by corporate entities
rather than an individual author.
The duration of protection in the online and offline environments
countries use different formulas for determining the
period of protection, so a work can be out of copyright
in one part of the world but still in copyright in another
country that's just a few kilometres (or a mouse-click)
and publishers have sought to harmonise the period of
protection or otherwise extend it, arguing that extension
reflects the longer lives of creators or the scale of
investment in major works
often more vocal than cogent, have complained that extension
is immoral, unconstitutional or simply unnecessary
Specific variations in the duration of protection, and
the global move to 'life plus 70 years' are illustrated
in a supplementary profile.
That profile also points to resources for identifying
whether a work is in copyright, for example the WATCH
(Writers, Artists & Their Copyright Holders) database,
discussed in more detail here.
The advent of web publishing has revived the debate about
the length of protection, with arguments for example that
copyright should be for a short and strictly limited period
such as ten or twentyfive years.
Such arguments are inconsistent with publishing realities:
a best-seller may recoup all its costs and generate significant
profits over a period of three years but thereafter sell
only a few copies, whereas work of less transient value
may sell slowly but steadily over a long period.
US lawyer Kevin Grierson commented that
copyright is truly a moral
right of the author, then the only reason for limiting
copyright at all is a sort of "rule against perpetuities"
for intangible property, that at some point it just
doesn't make sense to allow the "dead hand of the past"
to guide the future. If, however, copyright is just
a market incentive to encourage creation of new works,
then the term of copyright should be no longer than
that necessary to encourage such creation.
there is little agreement about the extent of the appropriate
incentive for creativity and its distribution.
Among the recent raft of papers and books on the duration
of copyright and other intellectual property - debate
about the whether Australia should follow the EU in protecting
copyright for the author's life plus 70 years (rather
than the current 50 years) or reduce the much shorter
period of protection for patents - works of particular
significance are -
Protection: Duration, Term Extension, The European Union
& The Making Of Copyright Policy (San Francisco:
Austin & Winfield 1998) by Robert Bard & Lewis
Term Extension: Estimating the Economic Values
(Washington: Congressional Research Service 1998) by
'The Copyright Term' by Sam Ricketson in 23 International
Review of Industrial Property and Copyright Law
Allen Consulting, on behalf of the Motion Picture Association,
with endorsement by the Australasian Performing Rights
Association, Copyright Agency Limited and Screenrights
released a report (PDF)
on the cost and benefits of extending the duration of
copyright in Australia. It was prepared as an input into
the Australia-United States Free Trade Agreement negotiations.
Dennis Karjala of Arizona State University maintains a
site opposing the extension of protection in the US. It
is perhaps most valuable for its access to the US Senate
on the Copyright Term Extension Act of 1996 (also
known as the Sonny Bono Act), the critique
by film historian Douglas Gomery and developments such
as the Supreme Court's decision (in Eldred v Reno)
that Congress did have the power to extend the term of
The 1996 US Act is most contentious for its extended protection
of corporate works, with much US criticism centred on
the Disney studios and other contemporary demons such
as the RIAA. Works by individual authors gained an extra
20 years of protection (ie the author's life plus 70 years,
up from life plus 50 years), with protection of content
created by corporate authors - for example many animated
films - increasing from a flat 75 years to a flat 95 years.
Lawrence Lessig suggested that copyright should last for
a mere five years (renewable 15 times, except for copyright
on software, only renewable once) and mandatory licensing
of music for a reasonable fee. Richard Stallman called
for a flat ten year period of protection. Rufus Pollock's
2007 Forever Minus A Day? Some Theory and Empirics
of Optimal Copyright (PDF)
asserts that the "optimal" period of protection
is 14 years, provoking one reader to comment that the
optimal lifespan for many Australian males is 24 ("live
fast, die in your prime before your hair falls out and
you get tired of reading Oxbridge dissertations").
For us there is more bite in Arnold Lutzker's paper
on What the Digital Millennium Copyright Act &
the Copyright Term Extension Act Mean For The Library
Community and The Copyright Term Extension Act
of 1998: An Economic Analysis (Washington: AEI-Brookings
Joint Center for Regulatory Studies 2002) by George Akerlof.
A table of different periods of protection in the US is
The Berkman Center has a similar site
based on the Eldred v Reno dispute.
The historical background is discussed in Tyler Ochoa's
'Patent & Copyright Term Extension & the Constitution:
A Historical Perspective' in the Journal of the Copyright
Society of the USA (2002). There is a cogent note
from Australia in Matthew Rimmer's 2003 article
The Dead Poets Society: The Copyright Term and The
Various anti-extension advocacy groups exist in the US
and elsewhere, ranging from the EFF
through to specialists such as the rather silly "No
Cense" Copyright Reform Campaign and enthusiasts whose
sites feature clocks with a countdown until particular
"ideas are free of their copyright prison".
There has been far less attention to claims that enactments
such as Tennessee's 1984 Personal Rights Protection
Act provide 'rights of publicity' protection in perpetuity
for the Elvis Presley estate and other popular culture
idols, highlighted later in
The US debate is clouded by genuflections towards the
nation's founding fathers (often presented as figures
whose distaste for intellectual property law exceeded
their abhorrence of government), although we note that
the founders were comfortable with slavery and a male-only
For an illustration of questions about duration and control
by widows, children, grandchildren or other heirs see
Keepers of the Flame: Literary Estates and the Rise
of Biography (London: Faber 1994) by Ian Hamilton,
Playing Darts with a Rembrandt: Public and Private
Rights in Cultural Treasures (Ann Arbor: Uni of Michigan
Press 1999) by Joseph Sax and Private Matters: In Defense
of the Personal Life (Reading: Perseus 1997) by Janna
Robert Cogswell's Copyright Law for Unpublished Manuscripts
& Archival Collections (New York: Glanville 1992)
supplements major archival professional publications but
is concerned with US law and should thus be used with
caution in Australia and New Zealand.
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.
The announcement alas reflected the power of US industry
interests in negotiation of the FTA rather than Australian
government concern for local creators - a demonstration
of the 'geopolitics' of IP.
The copyright provisions
of the US Free Trade Agreement Implementation Act
2004 commenced in late 2004, extending protection
from a life plus fifty years model to a life plus seventy
Many Australian photographs were formerly protected for
50 years from first publication and might thus pass out
of copyright during the photographer's lifetime. That
was regrettable, since the merest scribble of a three
year old (or her grandfather) is protected for life plus
50. Reform by the Commonwealth government moved at a glacial
pace prior to implementation of the FTA, which established
protection on the basis of the photographer's life plus
fifty years. A brief government discussion paper is here.
Australian copyright law, unlike that for patents
and trademarks, does not provide for 'renewal' of copyright
protection. Once the duration of protection has expired
the work becomes part of the public domain. Protection
can't be resurrected or revived by the owner or by another
However, the legislation provides some protection - generally
short term - for investment in 'editorial' activity, which
embraces such things as the creation of footnotes or other
scholarly apparatus, selection of works for a compilation
and the arrangement of text on a page.
Shakespeare, for example, is long dead and - in line with
the life + 50 model - his heirs aren't surfing a wave
of copyright royalties. However, the creativity of editors
of new editions of Shalespeare's prose and the investment
of publishers in preparing different editions is rewarded
through short-term protection for the specific edition.
It is important to note that many sound recordings, films
and multimedia works comprise bundles of rights - which
may be protected for different periods.
A music CD, for example, usually contains -
in the music (composer's life plus 70 years in Australia)
separate copyright in the lyrics (songwriter's life
plus 70 years)
separate copyright in the recording (for pre-1969 recordings
that protection lasts for 70 years from the end of the
year in which the sound was captured)
separate copyright in any original artwork and features
of the cover.
Australian protection at a glance
A profile identifying specific features of the duration
of protection in Australia is here
and in New Zealand is here.
Information about other countries is here.
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