PTC FORUM: Online Journal of the Patent, Trademark and Copyright Research Foundation

EUROPE / COPYRIGHT / DURATION

Copyright Duration? Too long!

Ian Kilbey

European Intellectual Property Review, Vol 25 Issue 3, March 2003

For his starting-point the author of this article takes the decision of the European Union to increase the term of copyright to 70 years post mortem auctoris. The decision, embodied in Council Directive EEC/98/93 of 29 October 1993, harmonizing the term of protection of copyright and certain related rights, was, in the author's opinion, wrong: the term could have been reduced, even below 50 years, without making an appreciable difference to authors, to their heirs or to publishers. He does not go so far as those commentators who favour abolishing copyright in books; but he does take the view that money is not the sole or main reason stimulating writers. Copyright has only a limited influence on mankind's desire to create; and publishers are capable of commercial success without the need to limit freedom of access to works for longer than, say, five years in most cases. According to Professor Cornish, whom he cites with approval, it was "unsubstantiated pressure from the copyright industries" that led to the speedy adoption of the Council Directive. The argument that the longer term reflects the longer lives these days of authors' descendants is spurious, since the greater the time elapsing between the creation of the work and the benefit to remote and sometimes even unidentifiable heirs, the more slender is the justification for conferring this benefit at all. In the article, a distinction is drawn between the author's rights, the publisher's rights and moral rights. The author's power to grant permission to publishers to publish their work should last for the length of the author's life and then pass to a person nominated by the author. The publisher's right should be the exclusive right of publication for five years from the date of grant, which will allow sufficient time to recoup expenses and make a profit. As for moral rights, or at least the right of attribution, there is no reason why this should not last forever: that would be a "small price to pay". In conclusion, the article observes that copyright duration appears to be inextricably linked to the emotional grounds for copyright protection but not to the logical grounds and cannot therefore be completely justified. [20088]