Directive harmonizing the term of copyright protection
Encyclopedia
Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights is a European Union directive
in the field of copyright
law, made under the internal market provisions of the Treaty of Rome
. It was 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.
across the entire European Union
. The chosen term was 70 years from the death of the author (post mortem auctoris, pma) for authors' rights
(Art. 1), longer than the 50 year post mortem auctoris term required by the Berne Convention for the Protection of Literary and Artistic Works
(Art. 7.1 Berne Convention). The directive notes that the original goal of the Berne Convention was to protect works for two generations after the death of the author, and that fifty years was no longer sufficient for this purpose (para. 5 of the preamble). It is often stated that 70 years pma was the longest copyright term of any Member State at the time: this is not strictly correct, and is not quoted as the reason for the choice in the directive. Where a Member State protected a work for a longer period at the time the directive came into force, the copyright term is not reduced [Art. 10(1)], but other Member States will not respect the longer period.
The duration of protection of related rights
(those of performers, phonogram
and film producers and broadcasting organisations) was set at fifty years with the following rules for calculating the starting date (Art. 3). This fifty year period was in reflexion of the negotiating position of the European Community at the negotiations which led to the Marrakech Agreement
s, including the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS).
in the Butterfly case, even if they had previously entered the public domain
. Strictly, they applied to works which were protected in at least one Member State on 1995-07-01, although most Member States chose to apply them to all works which would qualify on the basis of the protection terms, regardless of protection elsewhere: this approach is much simpler for national courts to apply, as they do not have to consider foreign laws.
The effect of the approach was shown by the judgment of the European Court of Justice in the Puccini case, which covered facts arising before the directive entered force. The State of Hesse
in Germany had staged the opera La Bohème
by Puccini
during the 1993/94 season without the permission of the copyright holder. The opera was first published in Italy
and Puccini died on 1924-11-29. At the time, Italy applied a copyright period of 56 years pma, so Italian protection had expired at the end of 1980: Germany, however, applied a 70 years pma period to works of German authors and the "rule of the shorter term" (Art. 7.8 Berne Convention) to foreign works. The Court ruled that the application of the rule of the shorter term between Member States was a breach of the principle of non-discrimination enshrined in Article 12 of the Treaty instituting the European Community: hence the work should have been protected in Germany even if it was no longer protected in Italy. Such cases should no longer arise with the implementation of the directive.
. Films are protected for 70 years from the death of the last of the following people to die [Art. 2(2)]: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work. This applies regardless of the provisions of national law regarding the authorship of the film, ensuring a common duration of copyright between Member States. The principal director of the film is always considered as an author of the film, although national legislations may provide for other co-authors [Art. 2(1)].
Before the directive, different Member States had applied widely different criteria of originality and creativity to the copyright protection of photographs. These were harmonized by article 6, which states that the only permissible criterion for full protection (70 years pma) is that the photograph is "original in the sense that [it is] the author's own intellectual creation". Member States may protect photographs which do not meet this criterion by sui generis related rights
.
work which was previously unpublished, for 25 years after the date of publication (Art. 4). The work must have been "legally published": in some countries (e.g. France
), authors and their heirs have a perpetual right to authorize (or not) the publication of a work and so, in these cases, publication must be with the consent of the holders of the moral rights in the work.
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
in the field of copyright
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...
law, made under the internal market provisions of the Treaty of Rome
Treaty of Rome
The Treaty of Rome, officially the Treaty establishing the European Economic Community, was an international agreement that led to the founding of the European Economic Community on 1 January 1958. It was signed on 25 March 1957 by Belgium, France, Italy, Luxembourg, the Netherlands and West Germany...
. It was 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.
Duration of protection
The principal goal was to ensure that there was a single duration for copyright and related rightsRelated rights
Related rights is a term in copyright law, used in opposition to the term "authors' rights". The term neighbouring rights is exactly equivalent, and is a more literal translation of the original French droits voisins. Related rights in civil law are similar to authors' rights, but are not connected...
across the entire European Union
European 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...
. The chosen term was 70 years from the death of the author (post mortem auctoris, pma) for authors' rights
Authors' rights
Authors’ rights are a part of copyright law. The term is a direct translation of the French term droit d’auteur , and is generally used in relation to the copyright laws of civil law countries and in European Union law...
(Art. 1), longer than the 50 year post mortem auctoris term required by the Berne Convention for the Protection of Literary and Artistic Works
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 :...
(Art. 7.1 Berne Convention). The directive notes that the original goal of the Berne Convention was to protect works for two generations after the death of the author, and that fifty years was no longer sufficient for this purpose (para. 5 of the preamble). It is often stated that 70 years pma was the longest copyright term of any Member State at the time: this is not strictly correct, and is not quoted as the reason for the choice in the directive. Where a Member State protected a work for a longer period at the time the directive came into force, the copyright term is not reduced [Art. 10(1)], but other Member States will not respect the longer period.
The duration of protection of related rights
Related rights
Related rights is a term in copyright law, used in opposition to the term "authors' rights". The term neighbouring rights is exactly equivalent, and is a more literal translation of the original French droits voisins. Related rights in civil law are similar to authors' rights, but are not connected...
(those of performers, phonogram
Sound recording and reproduction
Sound recording and reproduction is an electrical or mechanical inscription and re-creation of sound waves, such as spoken voice, singing, instrumental music, or sound effects. The two main classes of sound recording technology are analog recording and digital recording...
and film producers and broadcasting organisations) was set at fifty years with the following rules for calculating the starting date (Art. 3). This fifty year period was in reflexion of the negotiating position of the European Community at the negotiations which led to the Marrakech Agreement
Marrakech Agreement
The Marrakech Agreement was an agreement signed in Marrakech, Morocco, in 1994. The agreement established the World Trade Organization, which came into being upon its entry into force on January 1, 1995....
s, including the Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(TRIPS).
| Rightholders | Commencement |
|---|---|
| Performers | the date of the performance, unless a fixation of the performance is lawfully published or lawfully communicated to the public within this period, in which case the date of the first such publication or the first such communication to the public, whichever is the earlier. |
| Phonogram producers | the date the fixation is made, unless the phonogram is lawfully published or lawfully communicated to the public during this period, in which case the date of the first such publication or the first such communication to the public, whichever is the earlier. |
| Film producers | the date the fixation is made, unless the film is lawfully published or lawfully communicated to the public during this period, in which case the date of the first such publication or the first such communication to the public, whichever is the earlier. |
| Broadcasting organisations | the first transmission of a broadcast, whether this broadcast is transmitted by wire or over the air, including by cable or satellite. |
Copyright restoration
The new copyright terms applied also to works which were already in existence when it came into force, as was held by the European Court of JusticeEuropean 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...
in the Butterfly case, even if they had previously 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...
. Strictly, they applied to works which were protected in at least one Member State on 1995-07-01, although most Member States chose to apply them to all works which would qualify on the basis of the protection terms, regardless of protection elsewhere: this approach is much simpler for national courts to apply, as they do not have to consider foreign laws.
The effect of the approach was shown by the judgment of the European Court of Justice in the Puccini case, which covered facts arising before the directive entered force. The 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 Germany had staged the opera 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...
by 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...
during the 1993/94 season without the permission of the copyright holder. The opera was first published in 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...
and Puccini died on 1924-11-29. At the time, Italy applied a copyright period of 56 years pma, so Italian protection had expired at the end of 1980: Germany, however, applied a 70 years pma period to works of German authors and the "rule of the shorter term" (Art. 7.8 Berne Convention) to foreign works. The Court ruled that the application of the rule of the shorter term between Member States was a breach of the principle of non-discrimination enshrined in Article 12 of the Treaty instituting the European Community: hence the work should have been protected in Germany even if it was no longer protected in Italy. Such cases should no longer arise with the implementation of the directive.
Films and photographs
The directive also harmonizes the copyright treatment of films ("cinematographic and other audiovisual works") and photographs throughout 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...
. Films are protected for 70 years from the death of the last of the following people to die [Art. 2(2)]: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work. This applies regardless of the provisions of national law regarding the authorship of the film, ensuring a common duration of copyright between Member States. The principal director of the film is always considered as an author of the film, although national legislations may provide for other co-authors [Art. 2(1)].
Before the directive, different Member States had applied widely different criteria of originality and creativity to the copyright protection of photographs. These were harmonized by article 6, which states that the only permissible criterion for full protection (70 years pma) is that the photograph is "original in the sense that [it is] the author's own intellectual creation". Member States may protect photographs which do not meet this criterion by sui generis related rights
Related rights
Related rights is a term in copyright law, used in opposition to the term "authors' rights". The term neighbouring rights is exactly equivalent, and is a more literal translation of the original French droits voisins. Related rights in civil law are similar to authors' rights, but are not connected...
.
Previously unpublished works
The directive accords copyright to the publisher of a public domainPublic 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...
work which was previously unpublished, for 25 years after the date of publication (Art. 4). The work must have been "legally published": in some countries (e.g. 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...
), authors and their heirs have a perpetual right to authorize (or not) the publication of a work and so, in these cases, publication must be with the consent of the holders of the moral rights in the work.
Other provisions
As is normal in the field of copyright law, all periods of protection run until the end of the calendar year in which they would otherwise expire (Art. 8). Member states may protect "critical and scientific publications of works which have come into the public domain" for a maximum of thirty years (Art. 5). The protection of moral rights is left to national legislation (Art. 9).Implementation
See also
- Copyright law of the European UnionCopyright law of the European UnionThe copyright law of the European Union has arisen in an attempt to harmonise the differing copyright laws of European Union member states. It consists of a number of directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of...
- Grandfather clauseGrandfather clauseGrandfather clause is a legal term used to describe a situation in which an old rule continues to apply to some existing situations, while a new rule will apply to all future situations. It is often used as a verb: to grandfather means to grant such an exemption...
- Sonny Bono Copyright Term Extension Act
- Directive on the term of protection of copyright and certain related rightsDirective on the term of protection of copyright and certain related rightsDirective 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 is a consolidated version of the former EU Directive harmonizing the term of copyright protection, including all amendments made up to and...
External links
- Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights replaced by directive 2006/116/EC
- Adoption process of directive 93/98/EEC
- 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 (codified version) is the consolidated version of 93/98/EC with amendments that is in force since 2007.
- Adoption process of directive 2006/116/EC
- Geller, P. (2000). "Zombie and Once-Dead Works: Copyright Retroactivity After the E.C. Term Directive", Entertainment and Sports Lawyer, 18(2), pp. 7ff (ABA Forum on Entertainment Industries, 2000).