For some time there has been a raging debate between those who
argue for and against lengthening the term of copyright. On the one
side are creators and owners of original content who shudder at the
thought of their copyrighted works falling into the public domain
and becoming free for all to use. They argue that strong copyright
laws encourage the creation of new works. On the other side are a
different group of content users and creators, who are stymied that
they cannot adapt or use older content in telling new stories or
creating new works. Their view is that long copyright terms
obstruct the creation of valuable derivative works and that old
works should be like folklore: free for anyone to use.
In 1998, the United States extended the term of copyright
ownership from the life of the author plus 50 years to life plus 70
years. For works of corporate authorship the term was extended from
75 to 95 years from first publication. Due to the Disney
Corporation's involvement in lobbying for the law and the
original Mickey Mouse films being rescued from falling into the
public domain, the law has derisively been called the Mickey Mouse
Protection Act. Copyright extensions remain one of the main
frustrations to proponents of the Free Culture movement, whose most
eloquent advocate is Professor Lawrence Lessig. Those interested in
the Free Culture argument should read Lessig's book, Free
Culture: How Big Media Uses Technology and the Law to Lock Down
Culture and Control Creativity.
It strikes me that this debate falls into the trap of
"boundary-thinking", a form of either/or thinking that
lawyers so naturally gravitate towards by virtue of their training.
What if there is a middle of the road solution that gives content
owners sufficient protection without substantially impeding the
ability of further authors to create follow-on works?
Copyright is a bundle of four main rights reserved to the
copyright owner: the right to control reproduction, distribution,
public performance and adaptation of the copyright work. The first
three of these deal with the copyright work in its original form.
If Disney owns the copyright to the original Mickey Mouse films, it
can prevent any form of exploitation of those films, whether
through copying (reproduction), selling (distribution) or
performing them in public.
But what about the right to control adaptation of the work? In
my view, this is where the real heart of the debate lies. What
Professor Lessig is arguing for is not the right for any person to
publicly perform or sell copies of the original Mickey Mouse films,
but the right to re-tell the stories using themes or portions from
those films; in other words to adapt the old works.
My proposed solution to the Mickey Mouse problem is therefore to
adopt a hybrid copyright term approach. After an initial term, say
life of the author plus 20 years, the right of the copyright owner
to control adaptation of the work would fall away. Only
after a much longer term would the copyright owner lose the rights
to control reproduction, distribution and public performance of the
Of course, this type of change would come with challenges but
none of these should prevent the idea itself from being workable.
For example, a potential pitfall is in clearly distinguishing
between what permissible adaptation and impermissible reproduction
of a work would be after the initial term expires. But this should
be no harder than interpreting existing rules and standards in
copyright infringement. My suggestion would be to define
permissible adaptation as a transformation of the original work in
such a way that a substantially new work is recognisable.
I believe this approach could go a long way towards bridging the
chasm between Disney and Lessig.
It has always been the practice of the Industrial Property Institute of Mozambique to prohibit the refiling of trade marks that have been finally refused, which has posed a serious obstacle to trade mark applicants...
A recent Australian decision on keyword usage of a registered trade mark is in line with decisions in many other countries, including South Africa.
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