From Statute of Anne to International Rights

From Statute of Anne to International Harmonization and Perpetual Rights Presented by: Professor Hector MacQueen CBE (University of Edinburgh) Date: 26 March 2024 Overview - Subsequent decisions - Domestic term extension - International harmonizations - • Berne Convention; WIPO treaties • TRIPS Agreement • EU Directives Perpetual rights Aftermath Of The Decision - Donaldson v Beckett [sic] (1774) 1ER 837, 849, Note 2 • "Note 2.- [145] The universities were so much alarmed by this determination, that in the year 1775, they applied for and obtained an act of parliament for securing to them and the colleges of Eton, Westminster, and Winchester, the perpetuity in all copies then. or at any time afterwards given to, or acquired by them. Vide stat. 15 Geo. III. c. 53." Jefferys v Boosey - Jefferys v Boosey (1854) 10 ER 681, 738 (961) (Lord Brougham) • "In this House they were, if we reckon Lord Mansfield, equally divided upon the main question, whether or not the action at common law is taken away by the statute, supposing it to have been competent before; and they were divided. ... upon the two questions touching the previously existing common-law right. This House, however. reversed the decree under appeal, in accordance with the opinion given on the main point by the majority of the Judges: and upon the general question of literary property at common law no judgment whatever was pronounced." Aftermath Of The Decision: Jefferys - Jefferys v Boosey (1854) 10 ER 681, 739 (964) (Lord Brougham) • "If Milton's deathless verse had been recited, or Newton's immortal discoveries had been revealed in some learned conference, the right to let others hear them would have been confined to licensed persons, not indeed during the existence of the globe, which those prodigious works enlightened, and were fated to endure while it lasted, but as long as the Statute of Limitations and the law of perpetuities allowed." Date 4 May 1557 10 Apr 1710 22 Feb 1774 1775 1814 1842 1886 1 July 1912 Event Royal Charter for the Worshipful Company of Stationers Statute of Anne enters into force (14-year statutory term from first publication, renewable to 28 years) Decision handed down in Donaldson v Becket Copyright Act 1775 (15 Geo III) (copyright 'in perpetuity' granted to Oxford, Cambridge, Eton and other colleges) Copyright Act 1814 (54 Geo III) s 4 (copyright in literary works extended to 28 years from publication, or (if longer) for life) Literary Copyright Act 1842 (copyright in literary works extended to 42 years from publication, or (if longer) life plus 7 years) Berne Convention for the Protection of Literary and Artistic Works (Berlin Act of 1908 extends to life plus 50 years) Copyright Act 1911 enters into force (life plus 50 years; no requirement to register copyright with Stationer's Hall) Date 2006 2011 Event Directive 2006/116/EC (extends to life plus 70 years for literary and artistic works, films only) Directive 2011/77/EU extends to life plus 70 years (phonograms) Berne Convention: Article 7 - (1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death. - (2) However, in the case of cinematographic works, [members) may provide that the term of protection shall expire fifty years after the work has been made available to the public - (4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art... [which] shall last at least until the end of a period of twenty-five years from the making of such a work ... - (6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs." Berne Convention - WIPO, Guide to the Berne Convention (1978) at 46 • "It is not merely by chance that fifty years was chosen. Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations. Clearly the justice of the period varies; it depends always on the length of the author's life... But it is generally felt normal to add to the author's lifetime a period long enough to allow his heirs to profit from his work while they remember him.... Modern means of exploiting works often make the length of the term of copyright of little financial importance to the users: the latter negotiate blanket licenses with the authors' representatives to use large repertoires and normally the lapse into the public domain of any given work makes little difference to the amount they pay." Copyright, Designs and Patents Act 1988 s 12 - "(2) Copyright [in a literary, dramatic, musical or artistic work] expires at the end of the period of 70 years from the end of the calendar year in which the author dies, subject as follows.... - (6) Where the country of origin of the work is not the United Kingdom and the author of the work is not a national of the United Kingdom, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply (under UK law). - (7) If the work is computer-generated the above provisions do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made." Quasi-'Perpetual' Rights - Peter Pan: copyright gifted to the Great Ormond Street Hospital for Children; due to expire in 1987; extended in perpetuity by CDPA 1988 Schedule 6, para 2(1). - King James Bible: Crown prerogative grant upon King's Printer to print, publish and distribute (1611): 1775 Act conferred statutory right upon Universities; but prerogative grant not repealed by CDPA s 171(1)(b) (no change to common law right or privilege of the Crown). - Unpublished material: breach of confidence. - Sui generis database right: 15 year term, but in practice databases are perpetually maintained. - Passing off, published editions, arrangements. Policy Considerations - Who is the beneficiary of a longer term? The author, their heirs, or a assignee, employer or publisher? - Do benefits accruing to a commercial publisher from a longer term incentivize the author? - Where someone other than the author takes the economic risk of producing and financing a work, is a longer term necessary to obtain a reasonable return on investment? What is the benchmark for that return? - Do all works merit the same term of protection? The UK Is The World's Publisher - UK's £7bn publishing industry is home to some of the world's greatest authors, iconic stories and characters loved around globe - Home to the greatest exporting publishing system in the world - we export more books that any other country - £4.1bn in total export revenue - 200k books published each year in the UK, supporting thousands of authors. - Recognition of the importance of the nation's writers, and trading their ideas outwards - Our gold-standard copyright regime provides a stable investment environment which underpins this success