Increasing the Duration of Copyright in Literary Works in the United Kingdom - Essay Example

This paper examines the EC1993 Duration Directive, which stipulated that the period under which creative works would be protected by copyright should be extended by 20 years from 50 to 70. It provides an overview of historical background of the copyright laws that led up to the 1993 directive and then briefly touches on the various reasons on which the EC directive was made before delving in a more detailed analysis.1 It is the contention of this paper that the justifications given by the EC were not valid and the move was erroneous, to prove this the various justifications by the EC will be analysed and the weaknesses and contradictions in them discussed. After this analysis, the paper will conclude that despite the fact that many of the reasons have a sound basis, they do not suffice to justify the extension of the protection period.2 Introduction In contemporary society, intellectual property has become a high premium product and each day there is a new argument is on the subject that to some extent touches on the universal consumers or art literature and other creative works. One of the most critical issues regarding intellectual properties is the extension of copyright protection period that had remained at 50 years past the creator’s death for a few several centuries.3 By this definition, the rights are universally protected; however, the term of protection is not indefinite except for a few special works. Nevertheless, the contention of this paper has little to do with the definition and more to do with the amount of time for which the protection is supplied, in the UK; copyrights are protected but the Copyright and Design act of 1988 based on the 2003 amendments by the copyright and related regulations. Over the years, the UK has faces several challenges in related to copyright owing to the number of sometimes contradictory directives by other European countries as well as international proposal. This is in spite of the Berne convention of 1886, which set a minimum standard of protection among the countries participating in the same, later in 1905 the convention, set the minimum period of 50 years after the death of the creator. However, despite the relatively steep number of years, given many countries have often increased instead of making effort to reduce them and this trend eventually lead up to the latest EC duration.4 Nevertheless, there is serious doubt about whether this increase serves the interest of the public or is as advantageous to the owner of the work as the EC may want to allege5;6. According to the EC duration preamble, the reasons for the increase are categorized as legal, social political and economic issues; however, an objective examination of these reasons however is enough to prove otherwise. Despite the overtly logical basis on which they are grounded, none of them stand in the face of critical scrutiny. The core interest of this paper is to discuss in particular the 1993 change in which the copyright protection was extended and provides evidence through a critical examination of the reason given for the fact that the mover was ill guided, in a word, a mistake. Background The background of copyright can be traced back to the 18th century and although the rules by then were nowhere near the current ones in terms of latitude and legal requirements7, the have successfully set precedent for posterity which have led to the current laws. The first copyright statute was the statute of Ann and this is the first document that recognised the author and provided a limited term of copyright of 28 years, this was first enacted in the Donaldson and Becket case in 1774. In this case, copyright was established and the original laws were supposed to protect the investment by printers and publishers as opposed to those of the authors. In-fact it was only in the 19th century that their creative genius was recognised and the creation of works become author centred as opposed to publisher and printer centred.8 One of the landmarks in the history of the copyright law in the UK was the speech by TB Macaulay9 in the House of Commons in which he opposed the proposition to extended the copyright period to 60 years.10 According to him, there was no doubt that it would serve as incentive to the creators of the work; he did not see any reason why the royalties should continue to be paid to some other person for half a century.11 Largely, several of the arguments in this paper will derive from his sentiments since the embody opposition of the idea that came to be instituted in 1995. In 1842, the loyal copyright act was instituted after the lobbying efforts of several well-known authors who demanded that the copyright period be increased to either; 42 years after publication or, 7 years after the death of the creator 29. In 1878, the idea of a universal uniformity was proposed and it recognised the term of protection to cover a period of 30 years after the demise of the creator.12 The European commission also included all works of art such as sculptures and painting as well dramatic and musical works, based on the fact the previously suggest previsions for protecting copyright after the creators death were being enacted abroad, the international copyright arrangements were postulated.13 It was in the Bern convection, in 1886 that the original terms of protection whose adjustment this paper intends to critic were made, the articles 7(1) and &7(6) stipulated that the period of protection should be 50 years after the death of the writer. The 1911 copyright act enacted several of the suggestion that had been suggested in 1909 and allowed for the protection of artist work for 25 years after the creator’s death in addition any one could reproduce the work as long as they paid 10% of the original sale price. Later in 1956, the copyright act was amended to include films and radio recordings, in 1988; the section 12 of the copyright act was changed to provide protection for 70 years after the creator’s death.14 During the time, this resulted in widespread controversy and criticism and inspired several amendments by the European community.15 In the 1993 directive, European Union Council Directive 93/98/EEC was created with the intention of harmonisation in order to ensure that the rights of citizens who created artistic work. This directive stated that across the member states, the duration of copyright protection would be 70 years after the death of the author; the commission based the decision of the fact that Germany, which was deemed to have the highest number of years, should be the baseline. The extension was also supported by America which introduced the terms of the act to their industries in 1998 (through the term extension act, this was seen as a strategic economic move as it saved some of the most profitable entertainment franchises such as Walt Disney billions of dollars.16 The underlying arguments that were employed by the European parliament will be hereby briefly extrapolated before they are given a more intensive analysis. One of the key reason was the harmonization as it was claimed, rightly so, that some member states had over the course of the years used the freedom provide for in the Bern convection to enact legislation lengthening the protection period. Consequently in the interest of honoring the autonomy of these member states, and to facilitate the Arc EC 28 EC on the free movement of goods and services between different states, it was determined that the term should be increased to reflect the highest country with the longest period. Furthermore, the directive presupposes that owing to the intellectual nature of the works, long-term protection is important as the continued interest and creativity of the authors will ultimately benefit from the increased profitability resulting from the longevity of the work.17 In addition, the commission uses the statistically proven fact that Europeans are currently living longer than they used to in retrospect, therefore the length of time needed for two generations of the creator to profit maximum from the work. The first point of attack of the justification is the claim of harmonization, according to EC, harmonization is a critical part of encouraging two of the primary principles behind the community, for one, if provides equality of competition as well as liberal movement of goods across the various countries. However, owing to the disparities that had emerged because of different countries having different terms of protection the single market had been deeply divided. In the case of Consten vs Gruding, the commission formulated a principle of the exhaustion of rights, which is based on the assumption that an importer may take advantage of the variation in cost in different countries.18 Therefore, they could for instance buy goods in a country where they are lowly priced and sell them in one where the price is higher. According to the commission, that the owner of the copyright has allowed the product to be released in any part of the free market negates their ability to use intellectual property right to restrict its movement. Ironically, in spite of this precedence, in later cases, the ECJ determined that copyright ownership was qualification to prevent importation of goods from countries where the copyright had expired to those where it was had not.19 According to the court, even if one has legally bought the works in the country where the rights have expired, it does not constitute exhaustion of rights in the country to which the works is exported.20 The Patricia case however acted as motivation for the ECJ to come up with measure to prevent such as legal dilemma and this was carried out by harmonising the length of protection for all the countries in the Union to increase the term so it matches the highest period which was Germany with 70.21 Admittedly, this uniformity was important for the sake of streamlining international trade, nonetheless this was neither the only nor the most practical recourse under the circumstances. Retrospectively, other methods had been applied to solve such situations without requiring extensions of disregarding the Berne convection.22 One of these was the principle of negative integration, which unlike in the Patricia case required that when goods have been legally marketed in on country, they are immune from the regulations by other states and in this case, the lowest as opposed to the highest legal requirements serve as a yardstick.23 By upwardly adjustment , EJC not only acted in contempt of the Bern convection which it had ratified but also shows disregard for the rules governing the free movement of goods with the territories in which it exercised influence.24 Another consideration through which the extension can be questioned is based on its apparent repudiation of the rights of the majority and the efforts that was put in deciding that the term would be 50 years. This was a decision of the majority and therefore simply because one country has decided to increase its protection does not necessarily have to mean the others should follow suit.25 In addition, this act cuts short the hopes of the members of public who have waited for several years. Oddly, although the commission claimed it used germen protection period as a model for the rest as it was the highest, this is not true since Spain had at the same time enacted a provision for 80 years protection. Therefore, whatever reasons they gave for the decision were flawed since there is no proof that they did not actually just pick an arbitrary number, as the longest period was only true in paper. The extension of the limit for copyrights also brought about a serious inconvenience in as far as the works whose copyrights had expired, was concerned, take for example a work that had been created in Germany.26 If the books 50 years after the writer’s death had expired, it would automatically be in the public domain, however, the enactment of the 1993 extension required the works are once again protected until the extra 20 years are over. Despite the ECJ’s claim to harmonisation, it left out a lot of information in this matter and consequently resulted in a great deal of disharmony, for example there is no directive as to who would be responsible for dealing with proprietary issues and this were left to the discretion of individual countries.27 At the end of the day, the directive related in the very same disharmony and inequality it was supposed to eliminate since the member countries by making independent rules on the subject caused considerable inconsistency. By reviving copyright, the ECJ failed to consider the rights of those who had undertaken investments on works after the 50 years expired, according to the directive on extension, they should essentially be deprived of these rights.28 This is despite the fact that since their action predated the act, they had acted legally and therefore should not have been victimised based on the capriciousness of the commission. While the ECJ took cognisance of the situation and the necessity to address this matter, it once again abdicated responsibility and left action to be taken by member states each to their own with no harmony in deciding the fate of disinterested third parties.29 Although the Art 28 EC provided free movement of goods within member states, copyright revival prompted as serious restriction to the freedom.30 The 1995 act provides that the goods reproduced after expiry of the 50 years will be sold through a licencing agreement.31 This is ultimately injurious to those who had reproduced the work, in addition, by adding 20 years, publishers get monopolist power and this is especially worse owing to the fact that they can restrict supplies and increase prices. Moreover, this monopoly is solidified by the fact that there is no competition since the original seller can easily prevent others from reproducing the works. These monopolistic tendencies can be further demonstrated by the fact that even the any arising cost or production the supplier can pass on the consumer since in monopoly they will have nowhere else to go for the product or works One of the original reasons behind the Bern convections setting of the protection period to be 50 years was presumably so that at least two generations of his descendants may benefit from the work. National statistics attest to the fact that the life expectancy in Europe has gone up in the last once century; therefore, by allowing an extra 20 years they are taking consideration that of the fact the author’s descendants will have longer to live. While these figures cannot be ignored it must be taken to account that they are simply estimates and they may not necessarily be a true account of individualized life. Even if they were true, the fact of the matter is that the ownership of a piece of work was unlikely to descend from child to parent in the first 70 years and even when this is the case the last beneficiaries will only enjoy the proprietorship for a brief period of time. It is also worth noting that the Commission made the mistake of taking statistics act face value, based on this, they assumed that medical science and medicine would necessarily translate into longevity. However, this is not always the case and the studies involved are not always correct, nor objective, furthermore even if one was to assume that for argument’s sake this hypothesis on longevity was actually a factor, it would actually be self-defeating. If the people are living longer , it should then make more sense to reduce not increase the protection of the author since he/she enjoy a longer period of use and exploitation of the work the they did before.32 Another of the commission’s justifications for the harmonisation of copyright is that the rights are designed to encourage the intellectual creation by writers and through them, all the stakeholder will invariably benefit.33 The nexus of the argument by the commission is that the key force behind maintenance of works is the public domain, therefore as long as the copyright period is lengthened; the public domain will be relatively constrained. This way the writer gets more incentive to create, if the works are not protected, the commission argues, they creative geniuses may fail to live up to their full potential in posterity. This argument however flies in the face of logic for a number of reasons, among them is the fact that the extension of the period is purely post-humours and the commission did not and naturally cannot exert any influence on the lifespan of the creator. Ergo, the argument that was made to justify the 20-year extension has not connection whatsoever with the actual situation since it only covers the time when he is dead. How, one is forced to ask, is one supposed to get an increased incentive from an expansion that is only conditionally provided only after they are dead? Another argument proposed for the extension is that creators of independent works will substantially benefit from windfalls due to the high cost of acquiring their works because of the present copyright laws. Therefore, they may use these monies to fund bigger projects and thus boost creativity, which in the long run benefits them and the audience. This argument despite its relative social economic soundness does not factor in the issue of profit maximising by producers who essentially will fund projects that are expected to provide return a high return on investment.34 Macaulay in this speech implied that the extension only provides a post-humours monopoly, which potentially does not benefit the creator but people who may not be in any way related to him. The commission assumed that by increasing the term, the author will be motivated to create more work with the knowledge that it would benefit his descendants for a longer period of time after his death. However, according to Parrinder, there is no single case in which an individual has claimed to be motivated by that particular factor to create more or better work. A scenario where the commission’s extension is proved to be irrelevant and poorly thought out is where a writer sells the work for a lump sum possibly to a publisher or a third party. The ECJ did not make any allowances for this and consequently, works that change hands in this manner still fall beneath the extended protection period, this is in contradiction of the justification give to protect the creators of the works. In this case, the extension only works to protect the commercial interests of third parties and the writer or preceding generations reap no benefits from the venture. Furthermore, although it may be contended that even after the rights have been sold the publisher may compensate the writer over the years, the term in which this happens has little impact on the amount and one cannot claim that they will necessarily get more in a 60 year than a 20 or 30-year one. While the intention of the ECJ is primarily viewed as to not only protect but also encourage works of creativity, the extension has a detrimental impact in as afar as the latter is concerned. As aforementioned the public domain is contracted by an increase in the period of protection; for example, say an individual or firm would like to create a work of art based on a previously existing literally piece whose rights they are however runnable to pay for. They will obviously benefit from a shortened period of protection of the works, however since the enactment of the legislation to increase the period; such interests have suffered serious drawbacks. This is especially so in cases of those that had begun work in such projects whose protection had not expired in their original countries, owing to the reviving of copyright in line with the extension, they may be forced to wait for close to 20 years which is neither feasible. Conclusion In conclusion, it is abundantly clear that in as much as copyright is a critical requirement concerning economic and practical considerations; the extension of the term of protection is excessive to say the least35;36; 37. The protection offered to creators or artist work must be protected but then again the public should not be deprived of the creative works, at the end of the day, it is highly improbable that the benefits of an extended term supersede the cost and inconvenience to the public and stakeholders. As it has been proved herein, not even the owner of the works stands to gain a particularly high benefit concomitant with the extra 20 years that have been added to the protection period. Furthermore, in as much as harmonisation is important, it does not warrant such stringent measures especially after it has been proven that there are other means by which the harmonisation could be more expediently carried out by phasing out the long period and forcing all nations to use a shorter period. Despite the fact that citizens in Europe are indeed living longer, this is not suffice justification to increase the time period, in-fact it would make more sense for the period to go down instead of up. This can be because the writers would have more time to exploit the work as opposed to leaving the responsibility to their descendants who may not necessarily be interested. Finally, extending the period only serves to give the owners of the works monopoly power and instead of increasing the works available, its constrains future developments as writers who would have liked to build on retrospective work are forced to wait of abandon the ambitions. Bibliography Adcock, Mike and Llewelyn, Margaret. European Plant Intellectual Property. London: Hart Publishing. 2006. Alberstat, Philip. Copyright extension in the United States: the mouse that roared 10(3) Ent. L.R. 61. 1999. Antill, Justin. and Colles Peter. Copyright Duration: The European Community adopts ‘Three Score Years and Ten’ European Intellectual Property Review, London. Sweet and Maxwell. 2001. Bainbridge, David, I. Intellectual Property 2nd ed. London: Pitman Publishing. 1994. Bard, Robert. 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