Rule of the shorter term
Encyclopedia
The rule of the shorter term, also called the comparison of terms, is a provision in international copyright
treaties
. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment
, to at most the copyright term granted in the work's origin country.
(BC) or the Universal Copyright Convention
(UCC) work through national treatment
: signatory countries agree to grant copyright to foreign works under their local laws and by the same rules they grant copyright to domestic works. Whether a work is eligible to copyright, and if so, for how long that copyright exists, is governed by the laws of the country where copyright on the work is claimed. The Berne Convention and also the UCC define only the minimum requirements for copyrights that all signatory countries must meet, but any country is free to go beyond this minimal common denominator in its legislation. This is most noticeable in the duration for which copyrights are upheld. The Berne Convention lays down a minimal general copyright term of 50 years beyond the death of an author (50 years p.m.a.). But many countries have a longer term, such as 70 years p.m.a., or even 100 years p.m.a..
One and the same work may thus be copyrighted for different times in different countries. Its copyright may have expired already in countries with a minimum term, but at the same time, it may still be copyrighted in other countries that have longer copyright terms. National treatment may thus lead to an imbalance: while works from a country with a minimal copyright term are copyrighted longer in some other country that has a longer copyright term, works from such a country that goes beyond the minimum requirements of a treaty may already have entered the public domain
in foreign countries with shorter copyright term while still being copyrighted at home.
In such cases, the rule of the shorter term makes allowance for reciprocity
in exception to the normal national treatment. Countries with a long copyright term may apply only the shorter foreign term to works from countries that have such a shorter term.
Addressing concerns of the Japanese delegation, the conference chair clarified that this subsumed the case of classes of works that were not copyrightable at all in their country of origin (as specified), as these would have a copyright term equal to zero. Thus other countries would not be obliged to grant copyright on such foreign works, even if similar domestic works were granted copyright.
The application of article IV(4)(a) is not mandatory: "not being obliged to" is not equivalent to "being obliged not to".
, a similar rule exists, but not for "classes of works" but considering individual works. Article 7(8) of the Berne Convention reads:
Again, application of this rule is not mandatory. Any country may "provide otherwise" in its legislation. To do so, it is not necessary to include an explicit exception in the domestic copyright law, as the example of the United States shows.
The Berne Convention also states in article 5(2) that the enjoyment and exercise of copyright
This specifies national treatment, and also makes the existence of copyright on a work in one country independent from the existence of copyright on the work in other countries.
explicitly declared that the treaty was not self-executing in the United States in the Berne Convention Implementation Act of 1988
, section 2 (BCIA, Pub. L. 100-568). The BCIA made clear that within the U.S., only U.S. copyright law applied, and that U.S. copyright law, as amended by the BCIA, implemented the requirements of the Berne Convention (although it did not implement §18(1) of the Berne Convention, a deviation that was corrected by the Uruguay Round Agreements Act
(URAA) in 1994).
This statement from public law 100-568 is repeated in the U.S. Copyright law in 17 USC 104, which assimilates foreign works to domestic works and which furthermore states in 17 USC 104(c) that
Any requirements from the Berne Convention thus needed to be spelled out explicitly in the U.S. Copyright law to make them effective in the United States. But Title 17 of the United States Code
does not contain any article on the rule of the shorter term. The only mention of such a rule was added in 1994 with the URAA in 17 USC 104A, which automatically restored copyrights on many foreign works, unless these works had already fallen in the public domain in their country of origin on the URAA date, which is January 1, 1996 for most foreign countries. Because there is no general rule of the shorter term in U.S. Copyright law, U.S. courts have declined to apply that rule on several occasions.
(2d Cir 1985)). Hasbro
was distributing Japanese toys (action figures) in the U.S. under an exclusive license and claimed copyright on these toys. Sparkle Toys distributed exact copies of these toy figures. In the case, Sparkle contested Hasbro's copyright claims. In this pre-Berne case, the court arrived at the conclusion that Hasbro was entitled to copyright on the figurines although these toys of Japanese origin were not copyrighted at all in Japan, and even though the toys did not bear a copyright notice
. The case has been criticized in 2000 by William F. Patry
, who expressed the opinion that the Judge mistakenly arrived at the conclusion that the U.S. was required to grant copyright on these toys. Patry also concedes that under the Berne Convention, the U.S. would indeed be required to grant copyright to foreign works, even if such works were not copyrighted in their country of origin as per article 5(2) of the Berne Convention.
While the Hasbro case considered a special case of the applicability of rule of the shorter term in the context of the UCC, the case of Capitol Records, Inc. v. Naxos of America, Inc. (4 N.Y.3d 540, 2nd Cir. 2005) had the occasion to consider the matter under Berne Convention. In this case, Capitol Records
claimed copyright on old British sound recordings from the 1930s, on which the copyright in the United Kingdom
had expired in the late 1980s. Naxos Records
, which also and in competition to Capitol distributed restored versions of these recordings, challenged this copyright claim. Sound recordings are a special case because pre-1972 sound recordings in the United States are not covered by federal law but by state law. The court concluded that since federal law did not apply, and because nothing in the Berne Convention (which is inapplicable to sound recordings anyway) or the Rome Convention usurped the State of New York's
law, the works were under copyright pursuant to New York common law
- while the Uruguay Round Agreements Act and US statutes did not, and had never, offered protection to these works; the fact that they were not under copyright in the UK as of 1996 was completely irrelevant.
, France
, Spain
, and the United Kingdom
became effective; 1892 followed treaties with Germany
and Italy
; in 1893, with Denmark
and Portugal
; in 1896 with Chile
and Mexico
, and in 1899 with Costa Rica
and the Netherlands
. These treaties remained effective even after the 1976 Copyright Act unless "terminated, suspended, or revised by the President". The treaty from 1892 with Germany was applied in a court case in Germany in 2003.
, copyrights have been harmonized amongst the member states by the EU directive 93/98/EEC on harmonising the term of copyright protection. This binding directive, which became effective on July 1, 1995, has raised the duration of copyrights throughout the union to 70 years p.m.a. It also includes in its article 7 a mandatory rule of the shorter term for works from non-EU countries. Within the EU, no comparison of terms is applied, and—as in the Berne Convention or in the UCC—existing international obligations (such as bilateral treaties) may override this rule of the shorter term. Directive 93/98/EEC was repealed and replaced by Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights.
Germany extends the non-applicability of the rule of the shorter term to all members of the European Economic Area
in §120 of its Urheberrechtsgesetz. It also does not apply the comparison of terms to U.S. works. In a case decided on October 7, 2003 by the Oberlandesgericht of Hesse
in Frankfurt am Main, the court ruled that a U.S. work that had fallen in the public domain in the U.S. was still copyrighted in Germany. The court considered the rule of the shorter term inapplicable because of the bilateral copyright treaty between Germany and the United States, which had become effective on January 15, 1892 and which was still in effect. That treaty did not contain a rule of the shorter term, but just stated that works of either country were copyrighted in the other country by the other country's laws.
The EU member states implemented Directive 93/98/EEC and Directive 2006/116/EC in their national law.
This issue was settled decisively in 1993 (i.e., two years before directive 93/98/EC became effective) by the European Court of Justice
(ECJ) in what became known as the Phil Collins
decision. In that case, Phil Collins sued a German phonogram distributor who was marketing records of a concert Collins had given in the U.S. German law of that time granted German performers full neighbouring rights, and in particular the right to prohibit the distribution of recordings made without their consent, regardless of the place the performance had occurred. At the same time, German law granted the same right to foreign performers only for their performances that had occurred in Germany. The ECJ decided on October 20, 1993 that this was a violation of the non-discrimination clause of article 7 of the EC treaty. It also clarified that the non-discrimination clause was indeed applicable to copyright.
The court stated that
and clarified that this non-discrimination clause was not about differences between national laws, but to ensure that in any EU country, citizens and foreigners from other EU countries were treated equally:
In 2002, the ECJ then ruled in the Puccini
case (or La Bohème
case) that the non-discrimination clause was even applicable to nationals of EU member countries who had died before the EU came into existence, and it also explicitly reiterated that the comparison of terms was a violation of said non-discrimination rule. This case was about a performance of the opera La Bohème by Puccini by a state-owned theatre in Wiesbaden
in the German state of Hesse
in the seasons 1993/94 and 1994/95. Under the German laws of the time, the rule of the shorter term applied to foreign works and the opera was thus in the public domain
in Germany since the end of 1980, when its 56-year Italian copyright term had run out. (Puccini had died on November 29, 1924.) Domestic works at the same time enjoyed a copyright term of 70 years after the authors death in Germany. A publisher of musical works claimed to hold the rights to Puccini's works in Germany, and took the state of Hesse to court, based on the non-discrimination clause, which he claimed prescribed a copyright term of 70 years in Germany also for foreign works. The Federal Court of Justice of Germany
had doubts about whether the non-discrimination clause could be applied to authors deceased before the EU existed and referred the question to the ECJ, who fully confirmed the plaintiff's reading. The court flatly rejected the interpretation brought forth by the state of Hesse that the comparison of terms was based on the country of origin
of a work, not on the nationality of an author, and thus was an objective criterion and not discrimination of the grounds of nationality. The court concluded that
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment
National treatment
National treatment is a principle in international law vital to many treaty regimes. It essentially means treating foreigners and locals equally. Under national treatment, if a state grants a particular right, benefit or privilege to its own citizens, it must also grant those advantages to the...
, to at most the copyright term granted in the work's origin country.
Fundamentals
International copyright treaties such as the Berne ConventionBerne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
(BC) or the Universal Copyright Convention
Universal Copyright Convention
The Universal Copyright Convention , adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention....
(UCC) work through national treatment
National treatment
National treatment is a principle in international law vital to many treaty regimes. It essentially means treating foreigners and locals equally. Under national treatment, if a state grants a particular right, benefit or privilege to its own citizens, it must also grant those advantages to the...
: signatory countries agree to grant copyright to foreign works under their local laws and by the same rules they grant copyright to domestic works. Whether a work is eligible to copyright, and if so, for how long that copyright exists, is governed by the laws of the country where copyright on the work is claimed. The Berne Convention and also the UCC define only the minimum requirements for copyrights that all signatory countries must meet, but any country is free to go beyond this minimal common denominator in its legislation. This is most noticeable in the duration for which copyrights are upheld. The Berne Convention lays down a minimal general copyright term of 50 years beyond the death of an author (50 years p.m.a.). But many countries have a longer term, such as 70 years p.m.a., or even 100 years p.m.a..
One and the same work may thus be copyrighted for different times in different countries. Its copyright may have expired already in countries with a minimum term, but at the same time, it may still be copyrighted in other countries that have longer copyright terms. National treatment may thus lead to an imbalance: while works from a country with a minimal copyright term are copyrighted longer in some other country that has a longer copyright term, works from such a country that goes beyond the minimum requirements of a treaty may already have entered the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
in foreign countries with shorter copyright term while still being copyrighted at home.
In such cases, the rule of the shorter term makes allowance for reciprocity
Reciprocity (international relations)
In international relations and treaties, the principle of reciprocity states that favours, benefits, or penalties that are granted by one state to the citizens or legal entities of another, should be returned in kind....
in exception to the normal national treatment. Countries with a long copyright term may apply only the shorter foreign term to works from countries that have such a shorter term.
Universal Copyright Convention
In the Universal Copyright Convention, the comparison of terms is spelled out in article IV(4)(a), which reads:Addressing concerns of the Japanese delegation, the conference chair clarified that this subsumed the case of classes of works that were not copyrightable at all in their country of origin (as specified), as these would have a copyright term equal to zero. Thus other countries would not be obliged to grant copyright on such foreign works, even if similar domestic works were granted copyright.
The application of article IV(4)(a) is not mandatory: "not being obliged to" is not equivalent to "being obliged not to".
Berne Convention
In the Berne Convention for the Protection of Literary and Artistic WorksBerne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
, a similar rule exists, but not for "classes of works" but considering individual works. Article 7(8) of the Berne Convention reads:
Again, application of this rule is not mandatory. Any country may "provide otherwise" in its legislation. To do so, it is not necessary to include an explicit exception in the domestic copyright law, as the example of the United States shows.
The Berne Convention also states in article 5(2) that the enjoyment and exercise of copyright
This specifies national treatment, and also makes the existence of copyright on a work in one country independent from the existence of copyright on the work in other countries.
Bilateral copyright treaties
The terms of existing or new bilateral treaties may moreover override these conventions, as long as such bilateral treaties meet the minimum requirements of the conventions. This is defined in article 20 of the Berne Convention and in articles XVIII and XIX of the UCC.Worldwide situation
| Countries and areas | Rule of the shorter term? | References |
|---|---|---|
| Albania | Yes | Art. 24, Law No. 9380 of May 28, 2005 |
| Andorra | No, unless public domain in the country of origin on the date the transitional provision entered force. | Transitional Provision, Law on Copyright and Related Rights of 1999 |
| Antigua and Barbuda | Yes | s. 153(3), Copyright Act, 2002 |
| Argentina | Yes | Art. 15, Law No. 11.723 of September 28, 1933 - Legal Intellectual Property Regime |
| Armenia | No, unless public domain in the country of origin on the date article 45 entered force | Art. 71, Copyright, Law, 2006 |
| Australia Australian copyright law The copyright law of Australia defines the legally enforceable rights of creators of creative and artistic works under Australian law. The scope of copyright in Australia is defined in the Australian Copyright Act 1968 , which applies the national law throughout Australia... |
Yes | Item 5, Copyright (International Protection), Regulations, as consolidated 2005 |
| Belarus | Yes, while party to Berne Convention | Art. 3, Copyright (Adjacent Rights), Law No. 370-XІІІ, consolidated 2008 |
| Berne Convention Berne Convention for the Protection of Literary and Artistic Works The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :... signatories |
Yes if specified by signatory's legislation | Art. 7(8) |
| Brazil | No | Title 1 Art. 2 Copyright, Law, 19/02/1998, No. 9.610 |
| Canada Canadian copyright law The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921... |
Yes, except for North American Free Trade Agreement North American Free Trade Agreement The North American Free Trade Agreement or NAFTA is an agreement signed by the governments of Canada, Mexico, and the United States, creating a trilateral trade bloc in North America. The agreement came into force on January 1, 1994. It superseded the Canada – United States Free Trade Agreement... countries, i.e. U.S.A. and Mexico |
s. 9(2), Copyright Act, R.S., c. C-30 |
| China (People's Republic, Mainland only) | No | Art. 2, second and fourth paragraphs, Copyright Law of the People's Republic of China as consolidated in 2010 |
| Colombia | No | Art. 11, Ley 23 de 1982 |
| Cote d'Ivoire | No | Art. 4, Loi no. 96-564 du 25 juillet 1996 |
| Czech Republic | Yes | Sec. 107 Par. 4 of the Copyright Act: Law No. 121/2000 Coll. |
| Dominican Republic | Yes | Art. 21 Párrafo, Law No. 65-00 on Copyright of August 21, 2000 |
| European Union members | Yes (with exceptions; only towards non-EU members) | Art. 7(1), Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights |
| Guatemala | Yes | Art. 43, Law on Copyright and Related Rights, as amended on November 1, 2000 |
| Honduras | Yes | Article 44 of Decreto 4 99 E: Ley del derecho de autor y de los derechos conexos |
| Hong Kong Hong Kong copyright law Copyright law in Hong Kong to a great extent follows the English model. The Basic Law of Hong Kong, its constitutional document, guarantees a high degree of autonomy and continuation of laws previously in force after its reunification with Mainland China. Hong Kong therefore continues to maintain... |
Yes | s. 198(3)(b), 229(8)(b), 229A(6)(b), Copyright Ordinance (Cap. 528) |
| Iceland | No | Art. 61a, Copyright, Act, as consolidated in 2008 |
| India Indian copyright law Indian copyright law is governed by the Indian Copyright Act, 1957. Copyright Law in the country was governed by the Copyright Act of 1914,which was essentially the extension of the British Copyright Act, 1911 to India,and borrowed extensively from the new Copyright Act of the United Kingdom of 1956... |
Yes for countries designated in official schedule | Art 7, Copyright, Order, 1991, as amended in 1999 & 2000 |
| Indonesia | No | Art. 76c, Law of the Republic of Indonesia Number 19 Year 2002 Regarding Copyright, as entered into force in July 2003 |
| Israel | Yes | Art. 44, Copyright, Act, 2007 |
| Japan | Yes | Art. 58, Law No. 48 of 6 May 1970, as amended in 2006 |
| Korea, Republic of (South) | No | Art. 3, Korean Copyright Act Consolidated 17 Oct 2004 |
| Lebanon | No | Chap. 4, Copyright, Law, 03/04/1999, n° 75 |
| Macau | Yes | Art. 51, Decree-Law 43/99/M of August 16, 1999 |
| Mexico | No | Art. 29, Ley Federal del Derecho de Autor (1996), unchanged in Ley Federal del Derecho de Autor (2003) |
| New Zealand | No, unless public domain in the country of origin on the date of commencement of the Act (15 Dec 1994) | Pt. 11 Sec. 230.3(b), Copyright Act 1994 No 143 (as at 07 July 2010) |
| Nigeria | No | Arts. 4A and 33, Copyright, Act (Consolidation Ch. 68), 1988 (1999), No. 47 (No. 42) |
| Norway | Yes | Art. 6, Copyright (Other Countries EEA TRIPs UCC), Regulation, 25/04/1997 |
| Oman | No | Art. 24 , Copyright, Decree, 21/05/2000 - 1421, No. 37 |
| Pakistan | Yes for countries designated in official schedule | Chapter XI Item 54(iii) , Copyright, Ordinance (Consolidation), 02/06/1962 (29/09/2000) and Schedule section (pg 43), International Copyright Order, 1968 (18th June, 2000) |
| Paraguay | No | Art. 180, Copyright, Law, 27/08/1998, No. 1328 |
| Philippines Philippine copyright law Philippine copyright law is enshrined in the Intellectual Property Code of the Philippines, officially known as Republic Act No. 8293. The law is partly based on United States copyright law and the principles of the Berne Convention for the Protection of Literary and Artistic Works... |
No, though "Reverse Reciprocity" of section 231 may apply | Sec. 221.2 and 224.2 , Republic Act No. 8293 |
| Russia | Yes | Article 1256.4 of the Civil Code of the Russian Federation |
| Saint Vincent and the Grenadines | No | Art. 6(b), Copyright Act, 2003 |
| Singapore | Yes | s. 4, Copyright (International Protection) Regulations |
| Slovakia | Yes | Sec. 2 Par. 4 of the Copyright Act (Law No. 618/2003 Coll.) |
| Switzerland | No | Chap. 6, Federal Law on Copyright and Neighboring Rights |
| Taiwan, Republic of China | Yes | Art. 106bis, Copyright Act |
| Thailand | No | Art. 61, Copyright Act |
| Turkey Turkish copyright law Turkish copyright law is documented in the law number 5846 on Intellectual and Artistic Works .Turkey is revising its intellectual property rights laws in order to align them with WIPO standards. Turkey is a party to the Berne Convention, the Rome Convention and the TRIPS Agreement... |
No, unless public domain in the country of origin on the date the amendment to article 88 entered force | Art. 88, Copyright Act per additional Art. 2 |
| United States of America | No, unless public domain in the "source country" on the "date of restoration" | 17 USC 104(c) and 17 USC 104A |
| Venezuela | No | Art. 126, Ley sobre el Dercho de Autor as modified by the Decreto del 14 de agosto de 1993 |
Situation in the United States
When the United States joined the Berne Convention, CongressUnited States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
explicitly declared that the treaty was not self-executing in the United States in the Berne Convention Implementation Act of 1988
Berne Convention Implementation Act of 1988
The Berne Convention Implementation Act of 1988 is a copyright act that came into force in the United States on March 1, 1989, making it a party to the Berne Convention for the Protection of Literary and Artistic Works.- Context :...
, section 2 (BCIA, Pub. L. 100-568). The BCIA made clear that within the U.S., only U.S. copyright law applied, and that U.S. copyright law, as amended by the BCIA, implemented the requirements of the Berne Convention (although it did not implement §18(1) of the Berne Convention, a deviation that was corrected by the Uruguay Round Agreements Act
Uruguay Round Agreements Act
The Uruguay Round Agreements Act was an Act of Congress in the United States that implemented in U.S. law the provisions agreed upon at the Uruguay Round of negotiations of the General Agreement on Tariffs and Trade .- Legislative history :U.S...
(URAA) in 1994).
This statement from public law 100-568 is repeated in the U.S. Copyright law in 17 USC 104, which assimilates foreign works to domestic works and which furthermore states in 17 USC 104(c) that
Any requirements from the Berne Convention thus needed to be spelled out explicitly in the U.S. Copyright law to make them effective in the United States. But Title 17 of the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
does not contain any article on the rule of the shorter term. The only mention of such a rule was added in 1994 with the URAA in 17 USC 104A, which automatically restored copyrights on many foreign works, unless these works had already fallen in the public domain in their country of origin on the URAA date, which is January 1, 1996 for most foreign countries. Because there is no general rule of the shorter term in U.S. Copyright law, U.S. courts have declined to apply that rule on several occasions.
US case law
One case where this issue was treated was Hasbro Bradley, Inc. v. Sparkle Toys, Inc. (780 F.2d 189Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2d Cir 1985)). Hasbro
Hasbro
Hasbro is a multinational toy and boardgame company from the United States of America. It is one of the largest toy makers in the world. The corporate headquarters is located in Pawtucket, Rhode Island, United States...
was distributing Japanese toys (action figures) in the U.S. under an exclusive license and claimed copyright on these toys. Sparkle Toys distributed exact copies of these toy figures. In the case, Sparkle contested Hasbro's copyright claims. In this pre-Berne case, the court arrived at the conclusion that Hasbro was entitled to copyright on the figurines although these toys of Japanese origin were not copyrighted at all in Japan, and even though the toys did not bear a copyright notice
Copyright notice
A copyright notice, either as symbol or phrase, informs users of the underlying claim to copyright ownership in a published work.Copyright law is different from country to country, and a copyright notice is required in about 20 countries for a work to be protected under copyright...
. The case has been criticized in 2000 by William F. Patry
William F. Patry
William F. Patry is an American lawyer specializing in copyright law. He studied at the San Francisco State University, where he obtained a B.A. in 1974 and an M.A. in 1976, and then at the University of Houston, where he graduated with a J.D. in 1980...
, who expressed the opinion that the Judge mistakenly arrived at the conclusion that the U.S. was required to grant copyright on these toys. Patry also concedes that under the Berne Convention, the U.S. would indeed be required to grant copyright to foreign works, even if such works were not copyrighted in their country of origin as per article 5(2) of the Berne Convention.
While the Hasbro case considered a special case of the applicability of rule of the shorter term in the context of the UCC, the case of Capitol Records, Inc. v. Naxos of America, Inc. (4 N.Y.3d 540, 2nd Cir. 2005) had the occasion to consider the matter under Berne Convention. In this case, Capitol Records
Capitol Records
Capitol Records is a major United States based record label, formerly located in Los Angeles, but operating in New York City as part of Capitol Music Group. Its former headquarters building, the Capitol Tower, is a major landmark near the corner of Hollywood and Vine...
claimed copyright on old British sound recordings from the 1930s, on which the copyright in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
had expired in the late 1980s. Naxos Records
Naxos Records
Naxos Records is a record label specializing in classical music. Through a number of imprints, Naxos also releases genres including Chinese music, jazz, world music, and early rock & roll. The company was founded in 1987 by Klaus Heymann, a German-born resident of Hong Kong.Naxos is the largest...
, which also and in competition to Capitol distributed restored versions of these recordings, challenged this copyright claim. Sound recordings are a special case because pre-1972 sound recordings in the United States are not covered by federal law but by state law. The court concluded that since federal law did not apply, and because nothing in the Berne Convention (which is inapplicable to sound recordings anyway) or the Rome Convention usurped the State of New York's
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
law, the works were under copyright pursuant to New York common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
- while the Uruguay Round Agreements Act and US statutes did not, and had never, offered protection to these works; the fact that they were not under copyright in the UK as of 1996 was completely irrelevant.
Bilateral treaties
Following the Chace International Copyright Act, which was signed into law on March 3, 1891 and which became effective on July 1 of the same year, the United States concluded a number of bilateral copyright treaties with foreign countries. In 1891, treaties with BelgiumBelgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
, and the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
became effective; 1892 followed treaties with Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
and Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
; in 1893, with Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
and Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
; in 1896 with Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
and Mexico
Mexico
The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
, and in 1899 with Costa Rica
Costa Rica
Costa Rica , officially the Republic of Costa Rica is a multilingual, multiethnic and multicultural country in Central America, bordered by Nicaragua to the north, Panama to the southeast, the Pacific Ocean to the west and the Caribbean Sea to the east....
and the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
. These treaties remained effective even after the 1976 Copyright Act unless "terminated, suspended, or revised by the President". The treaty from 1892 with Germany was applied in a court case in Germany in 2003.
Situation in the European Union
In the European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, copyrights have been harmonized amongst the member states by the EU directive 93/98/EEC on harmonising the term of copyright protection. This binding directive, which became effective on July 1, 1995, has raised the duration of copyrights throughout the union to 70 years p.m.a. It also includes in its article 7 a mandatory rule of the shorter term for works from non-EU countries. Within the EU, no comparison of terms is applied, and—as in the Berne Convention or in the UCC—existing international obligations (such as bilateral treaties) may override this rule of the shorter term. Directive 93/98/EEC was repealed and replaced by Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights.
Germany extends the non-applicability of the rule of the shorter term to all members of the European Economic Area
European Economic Area
The European Economic Area was established on 1 January 1994 following an agreement between the member states of the European Free Trade Association and the European Community, later the European Union . Specifically, it allows Iceland, Liechtenstein and Norway to participate in the EU's Internal...
in §120 of its Urheberrechtsgesetz. It also does not apply the comparison of terms to U.S. works. In a case decided on October 7, 2003 by the Oberlandesgericht of Hesse
Hesse
Hesse or Hessia is both a cultural region of Germany and the name of an individual German state.* The cultural region of Hesse includes both the State of Hesse and the area known as Rhenish Hesse in the neighbouring Rhineland-Palatinate state...
in Frankfurt am Main, the court ruled that a U.S. work that had fallen in the public domain in the U.S. was still copyrighted in Germany. The court considered the rule of the shorter term inapplicable because of the bilateral copyright treaty between Germany and the United States, which had become effective on January 15, 1892 and which was still in effect. That treaty did not contain a rule of the shorter term, but just stated that works of either country were copyrighted in the other country by the other country's laws.
The EU member states implemented Directive 93/98/EEC and Directive 2006/116/EC in their national law.
EU case law
Even before article 7 of directive 93/98/EC explicitly prohibited the application of the rule of the shorter term amongst EU countries, the comparison of terms within the EU was not allowed. The Treaty instituting the European Community, which in its original version became effective in 1958, defined in article 7, paragraph 1, that within the union, any discrimination on grounds of nationality was prohibited. (Since 2002, when the treaty was amended by the Treaty of Maastricht, this is article 12, paragraph 1.) Application of the rule of the shorter term is such a discrimination, as it results in granting domestic authors longer copyright terms for their works than foreign authors from other EU countries.This issue was settled decisively in 1993 (i.e., two years before directive 93/98/EC became effective) by the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
(ECJ) in what became known as the Phil Collins
Phil Collins
Philip David Charles "Phil" Collins, LVO is an English singer-songwriter, drummer, pianist and actor best known as a drummer and vocalist for British progressive rock group Genesis and as a solo artist....
decision. In that case, Phil Collins sued a German phonogram distributor who was marketing records of a concert Collins had given in the U.S. German law of that time granted German performers full neighbouring rights, and in particular the right to prohibit the distribution of recordings made without their consent, regardless of the place the performance had occurred. At the same time, German law granted the same right to foreign performers only for their performances that had occurred in Germany. The ECJ decided on October 20, 1993 that this was a violation of the non-discrimination clause of article 7 of the EC treaty. It also clarified that the non-discrimination clause was indeed applicable to copyright.
The court stated that
and clarified that this non-discrimination clause was not about differences between national laws, but to ensure that in any EU country, citizens and foreigners from other EU countries were treated equally:
In 2002, the ECJ then ruled in the Puccini
Giacomo Puccini
Giacomo Antonio Domenico Michele Secondo Maria Puccini was an Italian composer whose operas, including La bohème, Tosca, Madama Butterfly, and Turandot, are among the most frequently performed in the standard repertoire...
case (or La Bohème
La bohème
La bohème is an opera in four acts,Puccini called the divisions quadro, a tableau or "image", rather than atto . by Giacomo Puccini to an Italian libretto by Luigi Illica and Giuseppe Giacosa, based on Scènes de la vie de bohème by Henri Murger...
case) that the non-discrimination clause was even applicable to nationals of EU member countries who had died before the EU came into existence, and it also explicitly reiterated that the comparison of terms was a violation of said non-discrimination rule. This case was about a performance of the opera La Bohème by Puccini by a state-owned theatre in Wiesbaden
Wiesbaden
Wiesbaden is a city in southwest Germany and the capital of the federal state of Hesse. It has about 275,400 inhabitants, plus approximately 10,000 United States citizens...
in the German state of Hesse
Hesse
Hesse or Hessia is both a cultural region of Germany and the name of an individual German state.* The cultural region of Hesse includes both the State of Hesse and the area known as Rhenish Hesse in the neighbouring Rhineland-Palatinate state...
in the seasons 1993/94 and 1994/95. Under the German laws of the time, the rule of the shorter term applied to foreign works and the opera was thus in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
in Germany since the end of 1980, when its 56-year Italian copyright term had run out. (Puccini had died on November 29, 1924.) Domestic works at the same time enjoyed a copyright term of 70 years after the authors death in Germany. A publisher of musical works claimed to hold the rights to Puccini's works in Germany, and took the state of Hesse to court, based on the non-discrimination clause, which he claimed prescribed a copyright term of 70 years in Germany also for foreign works. The Federal Court of Justice of Germany
Federal Court of Justice of Germany
The Federal Court of Justice of Germany in Karlsruhe is the highest court in the system of ordinary jurisdiction in Germany. It is the supreme court in all matters of criminal and private law...
had doubts about whether the non-discrimination clause could be applied to authors deceased before the EU existed and referred the question to the ECJ, who fully confirmed the plaintiff's reading. The court flatly rejected the interpretation brought forth by the state of Hesse that the comparison of terms was based on the country of origin
Country of origin
Country of origin , is the country of manufacture, production, or growth where an article or product comes from...
of a work, not on the nationality of an author, and thus was an objective criterion and not discrimination of the grounds of nationality. The court concluded that
External links
- Partial list of countries and whether or not they do apply the rule of the shorter term for movies.
- Geller, P.E.: Zombie and Once-Dead Works: Copyright Retroactivity After the E.C. Term Directive, in Entertainment and Sports Lawyer, 18(2), pp. 7ff, 2000.