The US Supreme Court recently upheld a statute that increases the duration of copyright protection in the US by 20 years. The statute, the 1998 Copyright Term Extension Act (CTEA), was passed in 1998 by the Clinton Government, with the strong support of the Disney Corporation whose copyright in Mickey Mouse was due to expire. However, concerns that the CTEA would provide undue monopolies to large corporations led to a court challenge against the statute which was ultimately lost. The decision means that corporations such as the Disney Corporation and AOL Time Warner will continue to have exclusive rights in popular works such as Mickey Mouse, Donald Duck and The Wizard of Oz for two more decades, which are worth hundreds of millions of dollars in additional royalties.
As the new copyright terms in the US are now in line with extended copyright terms in the European Union, the question arises as to whether Australian copyright terms will follow the same direction in the future.
Background to decision
In the Supreme Court decision of Eldred v Ashcroft, Attorney General No 01-618 (15 January 2003), a seven to two majority held that the CTEA which increased US copyright protection by 20 years for both existing and future works was constitutionally valid. Previously, copyright protection in the US for works created by natural persons generally extended from creation until 50 years after the author's death. 1976 Copyright Act (US), § 302(a). Now under the CTEA, copyright protection for such works extends from creation until 70 years after the author's death. Anonymous works, pseudonymous works and works made for hire (eg created for a corporation) attract copyright protection for 95 years after publication or 120 years after creation, whichever expires first. 17 U.S.C. § 302(c).
The decision is significant as it confirms that copyright terms in the US are now relatively on par with the European Union which adopted in 1993 an extended term of the life of the author plus 70 years for various copyright works. As the European Union generally denies this increased term to the works of other countries which do not provide for the same term, this decision enables American works to attract similar terms of protection in Europe as European works and is said to eliminate competitive disadvantages that could otherwise arise.
The decision was justified by the majority judges on the basis that the increased copyright terms would encourage copyright owners to invest in the restoration of their works for further dissemination. In an era of multinational corporations and internet use, practical benefits were also thought to arise from harmonising US and European Union copyright terms.
The two dissenting judges attacked the CTEA on the basis that (amongst other things) the extended copyright term:
did not sufficiently protect the public interest in free access to creative works, particularly as the 'fair use' exceptions to infringement were not comprehensive, and
would not provide economic motivation for authors to create new works as most works are unlikely to 'survive commercially long enough for the copyright extension to matter', and any additional royalty payments are likely to be received by heirs or corporate successors rather than the authors. Any small increase in economic motivation would be outweighed by the increased royalties and related costs to the public user of an extended copyright term.
Currently, protection in Australia for traditional copyright works generally extends from creation until 50 years from the author's death. This satisfies Australia's obligations under Article 7(1) of the Berne Convention. However, with major markets such as the US and European Union extending copyright terms, the question now arises as to whether Australia should be following suit to avoid any competitive disadvantages. This will not be a simple question to answer, as the competing tensions of public access to copyright materials must be weighed against any perceived benefits arising from an extended monopoly.
This newsletter provides a summary only of the subject matter covered, without the assumption of a duty of care by Freehills. The summary is not intended to be nor should it be relied upon as a substitute for legal or other professional advice. Copyright in this newsletter is owned by Freehills.
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