Various justifications have been advanced in support of the existence of Intellectual Property Rights.

The first part

of this paper will

• Copyright encompasses an enormous economic and cultural field (arts, education, information,
entertainment)
• Although copyright right is a relative, rather than absolute, monopoly, monopolistic behavior is possible
• This is particularly so where a number of works come under one individual’s or organisation’s control.

Ricketson:

Introduction

• Justification of IP rights = Justification of how long it should last

• Discussion of the desirable term of protection is inextricably linked to the question of rationale of
protection
• It is important to find solid basis to justification about why protection to intellectual property right should
be granted to reach sensible decision about how long it should last.

Justifications of IP Rights

• No crude generalization as to the best justification

• Two main justifications have been forwarded:
• (i) Natural Rights argument
o Those who argue that author’s rights are natural rights of property
o Locke: unowned property + labour = property right for the author
• (ii) Economic and Policy argument
o those who see them in purely functional terms as economic and policy instruments for the
dissemination of knowledge as well as the promotion of social and economic development

• Natural Right theorists: Natural Rights x Term

o Focus: Focus of natural right argument is on the individual who creates the work
o Kase: Natural right arguments imply that the length of protection should be perpetual.
o This approach doesn’t take into account wider social and economic consequences that flows from
that protection.
o Also ignores wider public interest concern
o Any positive / negative externalities that may arise are purely incidental to the recognition of
natural property right.

• Functionalist: Economic x Term

o Focus: For functionalists, focus is on the achievement of social and economic goals
o Protection should not be allowed for any longer than is necessary to achieve the particular social
or economic goal that is sought to be achieved by that protection
o In fact, they argue if the social or economic goal could be achieved without the grant of protection,
the protection should not be granted at all
o Economists: Intellectual Property rights should be public goods, so cannot readily be appropriated
by their owners

• Scarcity argument: Property Rights vs Intellectual Property Rights

o Perpetual property rights in tangible objects (land/chattels) are justified because they are scarce,
and to preserve economic efficiency.
o Resources are limited ad can only be used by a few persons at any one time, the grant of an
exclusive property right provides the most efficient means of ensuring that they are allocated to
their most productive use
o By contrast:
o Literary & artistic works, once in the public domain, can be endlessly reproduced / even
disseminated w/o depriving the author of the original work!
o There is no natural condition of scarcity of published works that dictates the need for the grant of
exclusive rights in their reproduction and dissemination!
o Should be no exclusive rights for owners!
 • Perpetual or Limited?
o Natural right theories have had strong influence on development of copyright laws
o 18th Century England – movement which advocates for perpetual pot-publicaiton copyright (Millar
v Taylor)
o However, up until now, national laws impose temporal limitation on the protection they granted
o Policy concerns: the need to protect the rights of the public to use and have eventual and
unrestricted access to the literary and artistic products that have been created.
o Public interest: people/State are interested in books and works that have been produced many
years ago. State wants to promote “encouragement of learning”

Benefits and Costs of Production

• Set aside natural rights argument first.

• Determining the appropriate rational for protection here involves weighing of costs and benefits
• Macaulay: Trade-off between benefit/cost is inevitable involved in copyright protection

Benefits of Protection:

• Justice to authors
o Macaulay: Strong moral argument
o Authors confer benefit on society through production of their creative work.
o They help to contribute to the provision of learning, instruction and entertainment
o Reward: Grant of proprietary right therefore represents a visible form of reward or bounty to the
deserving creator, so that society does the right thing by him/her. (not appropriating
unnecessarily/exploting)
o Standards of public morality are maintained and the feelings of the authors are shown respect
 Ili: therefore, should last perpetually? As long as possible to show respect
 Ili: or no more than necessary? life + 70 year is fine?

• Incentive to further creation:

o Everyone is susceptible to the appeal of monetary gain: if we remove copyright protection,
creative persons will be disincentivised from producing work, and hence, creative products will be
gone.
o Even authors who care little for themselves have dependents and wish to make provision for them
o The prospect of reward encourages them to keep on at their work and society as a whole
continues to benefit
o Economist: Human beings are rational profit-maximising creatures
o It also provides a strong argument against the grant of too lengthy protection:
 its purpose should be no more than to provide the incentive that is necessary to
encourage continued activity.
o Criticism:
o Ricketson: Many authors, particularly in the academic and scientific fields, produce their works for
a variety of non-pecuniary motives: for peer-recognition, professional advancement, public fame.
o Therefore, these other motives could also provide reward for them! Should be enough incentive!
o These other motives should be taken into account in any consideration of the term of protection
o If fame and recognition play a relevant role as an author’s motive, term of protection should be
discounted!

• Incentive for investment:

o In reality: the rights conferred by copyright are readily assigned or licensed to publishers,
promoters, producers and other intermediaries who take the risk of marketing and selling the work
to the world!
o General rule: Such exploitation is only undertaken on the strength an assignment or exclusive
licence of the author’s rights
o So what kind and term of protection is necessary to ensure that publishers will be prepared to
invest the funds necessary for the protection of new works, covering their costs and still ensuring
themselves a reasonable return?
o Basically: copyright gives incentive to both parties here
o Incentive for author to create – inducement to create so as to have some valuable and protectable
 property that can be sold to publisher
o Publisher needs some assurance that investment in plant, machinery, promotion will not be
plundered at will by third parties
o The incentive required by both parties may not be the same

• The continuing growth of the public domain

o Ensures the continuing growth and replenishment of the public domain of ideas, facts and
knowledge
o How:
 (i) by limiting form of protection granted, it guarantees from the outset that there is a
public domain of ideas and information that all may draw upon without infringing the
author’s copyright
 (ii) by placing a temporal limit on the protection given, the form in which works are
expressed also passes ultimately into the public domain where it may be taken and
reworked by any subsequent creator

Costs of Protection

 Tax on Readers:
o Copyright adds to the cost of works in the hands of final consumers : readers, members of an
audience, users of a computer program etc
o royalty is charged for the use= this adds to the price of the particular product in which the work is
embodied!
o In many cases, it will not be possible to find substitute works that are not also protected by
copyright, particularly if such protection is of long duration
o The need for cheap books has led counties to deny or limit protection to foreign works.

• Arbitrary and ephemeral character of the reward promised:

o Grant of copyright provide no guarantee of reward promised will be in proportion to the merit of
his work. Quantum of this is entirely dependent on the market place
o Where protection is for s uniform term, there’s every chance that the low-brow popular work will
receive far more return that one which has require far greater effort and intellectual originality and
which confers real benefit on the public in terms of the information and instruction it contains
• Incentive offered:
o No evidence that copyright protection has the incentive effect which is alleged
o We would never know what’s author’s real motivation for creating (pecuniary, fame, copyright etc)
o Role of copyright protection as an incentive to creative activity is a difficult matter to asses
o At best: it give authors the chance of some return, but no guarantee

Reaching the balance: Allternative to Copyright Protection

 Do the costs outweigh the benefits?

 Even copyright protection is, in many ways, unsatisfactory, the possible alternatives do not hold out any
greater promise of efficacy and certainty.
 But if we don’t allow copyright protection, we would encourage free-riding

Thus, grant of a property right which may be freely exploited in the marketplace appears to provide the least costly
way of encouraging creative activity, and the market mechanism is a relatively non-political means of allocating
resources, however vulnerable it may otherwise be to the whims of popular taste. For the purposes of our present
discussion, the real questions are, how much, and how long should this protection be?

How Much and How Long

 The more absolute the right, the more difficult it becomes to justify a long term of protection
 This has been the approach of most legal systems w/r to such rights as patents and designs: both confer
strong monopolies over the subject matter in question and the terms of protection for each are generally
less than 20 years
 Copyright is not a monopoly right in this sense but rather is a right against copying or derivation that
leaves scope for independent creation
  Copyright doesn’t protect the ideas/facts contained in copyright works, but simply the form in which they
are expressed (Kenrick v Lawrence)
o So these limitations allow for the development of a growing public domain that’s open to all to use
o On the other hand: they also point to the conclusion that a longer term of protection may be
acceptable!
o Because after all, they only protect expressions, not the idea!

Need to Provide for Dependents:

 Significant part of incentive argument consists of the possibility of making provision for one’s dependents
(both during and after one’s lifetime)
 So this point favours a term of protection that exceeds the life of author
 How long should this post mortem auctoris be:
o European academics: at least two generations of descendants
o Masouye: with increased life expectancies, each egenration should be accorded protection for its
notional life (60/70 years) = which means, a total post mortem auctoris of 120/140 years
o Ricketson: such a term is almost too fantastic!
 Should adopt more realistic terms such as 40 to 50 years PMA
 This would also be long enough to cover the life of the surviving spouse

Rebuttal (Ricketson)

 But it’s not even clear why protection should exceed even the space of one generation after author’s
death?
o Because in these modern days, social condition is different!
o Last time it might be rationale for male authors to wish to prevent his female dependants from
sinking into the workhouse
o It’s doubtful that prospect of remuneration so long after their death provides any more incentive
to authors to continue their creative activities!
 Incentive effect of copyright is so indeterminate
 There is little reason to suppose that this is aided by a long post mortem auctoris term of protection that
applies solely to the benefit of several generations of descendants

Apparent Inequities in a Term Based on the Author’s Life

 A term of protection based on the life of the author is fair as between individual authors
 It has the practical advantage of ensuring that different copyrights of the same author come to an end at
the same time
 On the other hand: it may produce huge variations in term, depending upon when the work was created
and how long the author lives
 Given the uncertainties of human life, it’s almost impossible to estimate the effect that such variations in
protection will have on authors
 If it could be shown that older and more mature authors wll be less likely to create because their term of
protection will probably be shorter than that of a younger author, the loss to society might be considerable
 On the other hand, it seems inequitable that an author who dies young will only have a few years
protection, if this.

One response: adopt some notional period based on average life expectancy and apply this to all works!

 Like say, 60-70 years.

 But major problem with this: copyrights in works created at different points of time would expire at
different times, with consequent difficulties for third parties
 This consideration leads to the conclusion: the actual life of the author remains the most convenient point
of reference, but that some fixed period after this is needed to reduce the effect of any inequities that may
flow from differences in the human life span
 In the light of discussion above, however, there does not seem to be any good argument in favour of a post
mortem auctoris period that goes beyond one notional generation of descendants
The Time Needed To Recoup Investment Costs: The Investor’s Perspective

 Issue of duration becomes further complicated :

 Sometimes the copyright owner in many cases is a person other than the author, often a corporation!
 Do such persons plan their investment decisions on time scales similar to those that are relevant for
authors?
o Common sense would suggest no; it would also suggest that these time scale themselves might
vary considerably acc to the type of work In question
 The commercial life a work is often very short, whether this is dictated by popular fashion, the advance of
knowledge or technical progress
 Example:
o blockbuster novels may seldom be reprinted a decade after their initial publication, while academic
treatise may be out of date even sooner!
o Again in the case of computer software, developments are so swift that a program may be
superseded within a couple of years

 Detailed factual knowledge would therefore be required in order to assess what average duration of
protection would be needed to encourage the investment needed to produce different kinds of works
o By and large, these terms may be quite short!
 On the other hand: industry evidence point in favour of longer terms of protection
o Gregory Committee 1952: Long terms necessary as publishers usually offset losses on less popular
books by their profits on the more successful
o A long period of protection was thus needed to ensure that they recovered the cost of their
investments

 Rebuttal:
o It cannot be supposed that publishers look to offset present losses by the promise of returns in the
distant future!
o Like all business, they must operate profitable in the present as well as future
o They must take risk: publishing business involves element of risk with no certainty in profit
o If publisher X is still around to receive the proceeds of a newly discovered interest in the works of
author Y (who died 50 years previously), this is because publisher X (or its predecessors) made
more astute publishing choices in respect of other authors while Y was alive
o Did publisher X ‘s initial decision to publish author Y hinge on the prospect of an ultimate profit
being earned at some time in the next century or so
o Evidence show: only 15% copyright owners saw any need to renew their copyright for a further
term after the initial 28 years of protection had elapsed
o Because after 28 years, chance of exploiting these works had disappeared so far as their owners
were concerned and the cost and effort of renewal hardly seemed justified by the prospect of
future windfalls in the form of renewed interest in the works in question

 Additional exploitation opportunities offered by the derivative or secondary rights that now exist in
works
o Thus, film, broadcast and cable rights may often prove far more profitable than the sale of copies
or public performance of a work, although such publication or performance is usually a necessary
condition for their realization
o Whilst earning from these subsidiary rights are by no means guaranteed and they are not relevant
to all categories of works, it is likely that they are often taken into account in initial decisions to
publish or perform: even if these activities prove unprofitable, these losses may be offset by
earnings from the future sale of film or other rights
o As these opportunities frequently do not arise until some time after the initial act of exploitation,
this may indicate that a longer term of protection is required so that they may be realized when
this happens.
o Once again, however it is hard to believe that publishers and other initial exploiters of works base
their present investment decisions on prospects of exploitation that may only arise in the distant
future.
 o Accordingly, the grant of a long term of protection may play little, if any, role in the decisions they
make in the present
o The tentative conclusions that can be drawn from the above discussion are
 (a) that longer terms of protection probably don’t play any part in the investment
decisions of copyright investors such as publishers and the like, although there is a need
to investigate the effect that the prospect of future exploitation of derivate rights plays in
their decisions,
 and (b) the appropriate length of protection may well vary as between works and as
between categories of works

 Identification of Elements:
o There is the difficulty of identifying who’s entitled to particular rights and to whom application for
permission to use must be made
o Especially where there’s no compulsory registration of copyright (like UK)
o So identification of those persons entitled to copyright protection will be easier if this protection
is of shorter, rather than of longer duration
o It ‘s possible that there is still scope, within Convention to promote fuller use of registration
systems if the latter can be seen to confer additional benefits that do not detract from existence
and enjoyment of effective copyright protection
o The advent of computer technology now makes the keeping of even perpetual record systems
feasible, while the growing movement towards the collective admin of authors rights makes their
management much easier
o Thus, the combined effects of registration, technology and collectivization could do much to
overcome objections to long terms that are based solely on difficulties of identification.

 Post Mortem Auctoris Suppression of Works

o Possibility of suppression of works deemed to be undesirable by authors’ successors in title
o Control of works by an author’s descendants may cause harm!
o Example: cost of permissions for third party uses may be fixed at excessive levels and tied to
various restrictive conditions!
o In particular, insistence on exact reproduction or performance of a work may lead to artistic
frustration and sterility, as, for example, happens where permission to perform a dramatico-
musical work is only given on condition that it be done in a particular manner
o In these and other ways, the living legacy of the past can be all too readily curtailed by the dead
hand of the present

 New Claimants for Protection: The Impact of New Technologies

o The range of subject-matter protected by copyright is hardly uniform in character, ranging as it
does from the sublime to the mundane
o Technological process has continually brought into existence new claimants for protection
o Neighbouring rights: Thus sound recordings, cinematoraphic films, sound and TV broadcasts, typo
arr, comp porg, work of applied art have all been accorded protection (duration varies)
 These products are not products of individual authorial endeavor
 These contributions are insufficiently literary / artistic in character for them to be
regarded as works
 And for the persons supplying them to be regarded as authors
 Even if some authors are identifiable, there are usually too many other putative authors
to be dealt with conveniently by traditional copyright law notions of joint authorship;
 That the real claimant for protection is the enterprise which actually underwrites and
supplies the necessary investment of resources for the production of the particular
subject-matter, for example, the record company, publisher or broadcasting organisation
o So here we have problems with identification and delimitation of authors
o Unlike LW, AW, where the author remains real and readily identifiable person
o Therefore for these enterprenuerial works, we become concerned with an industrial property kind
of rights, determined and delimited solely by reference to the incentive-to-invest approach
outlined above.
o This means a term that’s considerably shorter than the ordinary human author’s life spen
o It also indicates that the appropriate term of protection may quite legitimately differ as b/w works
and other subject-matter and as between different categories of works and subject-matter
themselves
  Special Factors Affecting the Issue of Duration: War Losses and Other Disasters
o To what extent should the copyright term, however fixed, take account of extraneous factors that
restrict the exploitation of the copyright during its normal period of protection?
o After both WW, a number of European Countries gave extensions to their copyright terms to
compensate for the loss of exploitation opportunities that resulted form wartime conditions

 The Problem of Uniformity

o Unformity of term: Uniformity has long been seen as desirable object, particularly at the
international level
o To what extent does the attainment of uniformity provide advantages as opposed to a diversity of
determination of a particular period of protection be made subject to the overriding goal of
uniformity?
o To what degree should the determination of a particular period of protection be made subject to
the overriding goal of uniformity?

Argument in favour of uniformity: certainty, simplicity, reduced transaction costs

o But: these advantages differ according to the context in which uniformity is considered

o (i) As between individual works: it may well be possible to determine the length of protection of
works on an individual basis, acc to such criteria as merit or the time needed for the cost of
production to be recouped
 However, it hardly needs to be said that such inquiries would be expensive and
cumbersome to perform and could very well become politicized
 Differential terms b/w individual works would also cause inconvenience and uncertainty
for third parties wishing to use those works. Unformity of term at this level therefore
seems a necessity

o (ii) As b/w different categories of works: it was suggested that different terms of protection might
well be justified for particular categories of works
 Assuming that these categories are clearly identified and there is uniformity of term
within each category, such a sustem would be relatively easy for rights owners and users
alike
 Uniformity per se has little attraction at this level

o(iii) As b/w different countries: given the possibilities that exist for world-wide disseminaton of
works and the copyright protection that is now accorded in upwards of 100 countries under the
international copyright conventions, national differences in term, whether general or specific, will
lead to various disadvantages
 Rights owners will be uncertain as to the duration of their rights in different countries and
it will be expensive to monitor this
 Third parties will also be uncertain etc
 So uniformity seems a desirable goal at the international level too
 Conclusion:
o (i) Determination of a particular term of years is an imprecise/arbitrary process
 but balance of argument points to desirability of shorther than longer terms of protection
o (ii) There is some justification for these terms exceeding the life of author, but may not be so in all
cases and different terms may be appropriate for different kinds of works and subject-matter,
particularly in the light of new technologies
o (iii) there should be no provision for extensions of term in exceptional circumstances
o (iv) Uniformity in term can provide certain advantages

Some Special Cases

These are several special cases that need to be considered in any discussion of the copyright term

Moral rights

 Non-economic rights. Right of attribution, false attribution, integrity

 Basis: personal connection of authors with their works and the interest they have in controlling the way in
 which their works are divulged to the world
 To maintain their association with those works once these are before the public, and in ensuring that the
integrity of their works is represented by third parties
 Kant: opinions of authors need to be disseminated accurately and in accordance with their true intentions
 Vaver: Truth in advertising

Issue

 Should these rights endure as long as the economic rights in a work? Should they last long? Longer?
 Note that the interests protected by moral rights are different form the economic interests of the author in
the exploitation of his work
 Less clear how long these moral concerns remain of relevance to an author?
 It may be agreed that authors’ concerns for protection of their moral interests can last as long as they lie, it
is far from clear why such protection should endure after death?
 Does the continued need for attribution serve any purpose once the author is dead?
 Yelah we need to respect memory of deceased authors, but then after the author is dead, the reality is that
moral rights are used by beneficiaries and successors in title for the protection of their own sensitivties
rather than those of the deceased author.
 There is also the danger that post mortem auctoris controls over these matters may lead to the cultural
atrophy referred to above where famous works cannot be reinterpreted by later creators, even though the
latter may have acquired the economic rights necessary for this purpose or the works may have actually
fallen into the public domain

Post mortem protection of moral rights therefore appears to require justifications distinct from those that are
advanced for economic rights

 Incentive : Authors will be less inclined to create if they feel that their memory will not be honoured after
their death. Rebuttal: But such an explanation would be extremely difficult to assess in objective terms,
particularly in light of the fact that authors have continued their creative activities apparently unhampered
in countries where there lack any effective post mortem auctoris protection of moral rights

 Public Interest: Wider public interest of respect and attribution that transcends the interests of would-be
users. need to preserve the integrity and purity of works that have become cultural icons. It’s possible to
extend this argument to works generally, as the maintenance of their accuracy and past. Rebu
a. Rebuttal: this need does not justify a continued and complete control over the way in which works
of deceased authors are used, particularly if the economic rights therein have ceased!
b. Result may be censorship, as well as cultural atrophy, and these dangers are accentuated if control
is placed in the hands of disinterested public officials rather than family and successors in title
c. After the death of an author, it is perfectly possible to preserve the authenticity of his or her works
w/o allowing the all-embracing moral rights controls that may be accorded to him/her while alive
d. So we keep authentic copies for posterity, w/o placing limitations on the way that these works may
be interpreted or used by oher parties
e. Cultural diversity is encouraged as old works are reinterpreted and adapted, but it remains
possible to go back to the original because we have authentic copies!

Unpublished (or undisclosed) works

 Thus far, our discussion of duration has proceeded on the largely unstated premise that the works in
question have been published or otherwise disseminated to the public.
 Different considerations apply to unpublished works? Should the protection of these works also be subject
to temporal limitations or should they be protected indefinitely, until such time as publication or disclosure
take place?
 By definition, unpublished works cannot be the subject of commercial exploitation so long as they are
unpublished and there can be no infringement of the author’s moral rights during this period
 The critical moment, both in commercial and personal terms – is that of the moment of publication itself!
 This is something that both author and copyright owner have a vital interest in both pecuniary, non-
pecuniary
 Pecuniary: need to maximize the returns from publication & subsequent exploitation of the work
 It’s possible that author and publisher may wish to time the release of the author’s works, so as to ensure
that the market is not saturated and the writer written out
  Non pecuniary concern: author nak work reaches the public in accordance to his wishes
o Author’s concern: involve privacy and reputational interests that are acknowledged in differing
degrees in most legal systems under heads of protection other than copyright
 Public interest: A lot of useful information/creation will remain outside of public reach if a lot of work is
unpublished! Therefore public prefer If published!
 But in order to get these works published, we must encourage the authors to publish and one of the ways
to do so: must give protection!

(i) Accord protection for the same period of time as for disseminated works
o So if work remains unpublished during this time, there will be no protection if disclosure occurs
subsequently
o This approach has the advantage of certainty, in that all works will notionally enter the public
domain at the same time, even though the possibility remains that other protections may be
available so long as work stays unpublished (eg breach of confidence)
i. Further more, if work is undisclosed during author’s lifetime, it’s difficult to ee what effect
the possibility of indefinite protection post mortem auctoris will have on him/her
ii. Any decision to publish after the author’s death will be made by a successor in title, who
will be more likely to do so within the term of copyright remaining in order to reap what
commercial advantage may be obtained from the work.

(ii) Allow protection indefinitely, and to grant a further fixed term once publication (or other public
disclosure) has taken place.
o The argument in favour of this is: the additional term of protection provides an incentive for
disclosure to occur!
o Publisher more likely to undertake this if there is some security for his investment
o In absence of such protection: worthy works will remain hidden from view and public will suffer
o Rebuttal:
i. it may confer protection on the works of authors many years after they have died, and
long after the reasons for any personal sensitivity have disappeared.
1. This may not be too severe an imposition on the public if the term of post-
publication is relatively brief!
ii. Severe restraints upon later users (academics, researchers etc)
iii. If the publication of such material involves such considerable cost and effort in relation to
such matters as editing, translation and preparation, it is very likely that this work itself
constitute a “work” for copyright protection! So if such protection is available, no reason
for the grant of further protection in relation to the original unpublished work, so long as
physical access to the latter is allowed.
iv. The matter of access, however, seems an issue for national archives / heritage policy,
raher than for the law of copyright

Conclusion: both approaches outlined seek to achieve same pbjective, namely the ultimate publication or disclosure
of works, but adopt directly contrary methods for accomplishing it.

In the absence of empirical evidence as to which is the more effective, the intuitive response must be that limited
protection is the more likely to succeed, particularly if there is protection for any subsequent intellectual effort
and/or investment that is expended in the preparation of an unprotected work for publication.

The International Dimension

Conclusion

(i) Reality: Many exclusive rights of authors have been transformed into mere right of remuneration through
licensing/employers/employee etc

Even if there are practical benefits that flow, we should investigate whether the present 70 term post mortem
auctoris should be shortened

o Commercial and practical reality: most copyrights now are transferred by authors to others! To publishers,
producers, promoters and the like who then undertake the marketin and dissemination of the work.
o Thus, the interests of the author in relation to term become of secondary importance!
 o They don’t care if term’s short whatever
o So, Real issue: what term of protection necessary to ensure these ‘investors’ (publishers etc) to invest!
o Ricketson : Shorter minimum terms might therefore be just as efficacious in stimulating decisions
to invest as well as the initial decision of an author to undertake the act of creation.
o Another alternative: whether some form of statutory licensing could be adopted in the post
morem auctoris portion of the present term of protection or for some part thereof, for example,
the last 20 years

(iii) Moral rights.

o Length of protection for moral rights, particularl post mortem auctoris, also needs reconsideration.
i. Given the innately personal nature of these rights, should they continue to be protected
after the death of the author?
ii. If so, then they should be more concerned with preservation of authentic character of
author’s works rather than with provision of aesthetic controls over the way such works
are exploited

Geiger The extension of the term of copyright and certain neighbouring rights - a never-ending story?

On 16 July 2008 the European Commission adopted a proposal for a directive that aims to extend the term of
protection of the rights of performers and phonogram producers from 50 to 95 years.

“performers, and especially session musicians, are among the poorest earners in Europe, despite their considerable
contribution to Europe's vibrant cultural diversity

Premise: (Geiger) Protection should not be prolonged:

Rebuttal : the extension of the term of protection that is envisaged by the proposal of EC will not be beneficial to
the majority of performers (who, however, would have greatly deserved the action of the legislature to defend their
rights)

Why:

1) a prolongation of their exclusive rights risks benefiting in the end only a minority of “superstars” (who are in a
position to negotiate large royalties anyway) and will presumably not achieve the stated objectives.

2) an extension of the duration of the exclusive right of producers profoundly risks encroaching upon the public
domain in an unjustified manner and at the same time sets a very negative signal for public opinion. This could
cause significant harm, as copyright and neighbouring rights unfortunately do not enjoy a good press already.It still
does not seem to be a good idea to prolong the term of protection and to allow producers to exploit certain existing
works for a longer period in order to compensate for these damages.

As the above-mentioned report by Lévy and Jouyet rightly emphasizes, “if an eventual later prolongation of the
duration of the right applies to a work that is already commercialized, this will generate a rent without any economic
counterpart

3) New Works: Intellectual property rights are granted to provide incentives for the creation and production of new
works, not to allow for the indefinite exploitation of works that already exist. Fifty years is already a long period,
which enables the producer more than enough time to amortise (pay-off) his investment and to make legitimate
profits.

4) Limited in Time: one should not forget that intellectual property rights are by nature limited in time: after the
expiration of the monopoly, the work falls into the public domain and can thereafter be freely used by other creators
as a basis for new creations or be exploited at a lower cost by other producers, for the greater benefit of users, who
can have cheaper access to the works.

The public domain, as an essential part of the philosophy of intellectual property, is in the public interest. It should
not be challenged without very serious justifications. Since there are no such justifications in the present case, the
public domain must be protected from the permanent assaults it incurs, and this proposition for a directive should
be rejected. The credibility of intellectual property depends on it.
Parrinder: The dead hand of European copyright

Why Extend 50 Rule to 70 Rule

The 50-year period after the author's death became standard among the signatories of the Berne Convention,
including Britain. Should we extend? (Now has been extended CDPA 1988)

No

1) Public Interest: The longer the copyright, the higher the price of books, the more cost to the public

o huge sales of certain classic writers are by no means the result of free consumer choice. The publishers rely
on a captive market of students who have to buy their books, in order to pass exams.
o Because of royalties, a copyright text is more expensive to produce than a non-copyright text.
o This means that any extension of the current copyright law will benefit the authors' heirs at some cost to
the educational system, libraries, parents and taxpayers.

2) Effects to development of Educations/Scholarship

o Literary scholarship will be severely impeded.

o There is a growing need for definitive editions, for critical commentaries including quotation, and
for extracts to be reprinted in anthologies.
o Where the work is in copyright, permission for these acts of exploitation is very frequently refused.
o One result of this is that the work of virtually every major author still in copyright is perpetuated
in corrupt, haphazard and sometimes bowdlerized (censored) editions.
o The author's own wishes are frequently overlooked, and printer's errors go uncorrected for
decades.

o Textual scholarship remain stagnant since there is no prospect of its findings leading to better editions.
o Then, shortly before the rights expire, there is a rush to re-edit and improve the texts in the hope
of retaining a share of the market.
o At this point, the defects long known to the specialists in the field can actually be remedied.
o Had the new law been in force, the recent advances in our understanding of such a controversial
text as Joyce's Ulysses would most likely have been delayed until well into the 21st century.
o The labours of a generation of scholars would have been wasted.

Strengthening a Restrictive Practice

o Copyright was once a liberating force for writers and artists. By giving them legal ownership of their work, it
confirmed their professional status and allowed them to deal with publishers on equal terms. But copyright
is also a form of restrictive practice. When the law is used to strengthen and extend a restrictive practice it
seems reasonable to require that the results should be demonstrably in the public good. Astonishingly, the
rationale set out in the EC's recent statement on copyright can be torn to pieces by any thinking person
within five minutes.
o The Council members recognise that some states have extended their term of copyright beyond 50 years
after the author's death to offset the effects of two world wars -- a piece of temporary and, one would have
thought, outdated special pleading. They claim to have had ‘due regard to established rights’, as if the only
rights concerned were those of the copyright holder, and not of the public at large -- hence the longest
term of protection in any member country automatically becomes the standard term in every country.
(‘Subsidiarity’ is clearly a non-starter so far as the copyright law is concerned.) The Councillors also mention
the ‘need to establish a legal environment conducive to the harmonious development of literary and artistic
creation in the Community’, though it is not clear why this should extend to posthumous rights. Moreover,
the copyright term must be extended because ‘the average lifespan in the Community has grown longer’.
o
• d) Read S. Ricketson ‘The Copyright Term’ (1992) 23 IIC 753 (distributed via QMplus)

• (When reading the Ricketson article, bear in mind that it was published in 1992, when the term of copyright in the
United Kingdom was generally shorter than it is now).

“From the perspective of natural rights theories, the implication for length of protection are clear enough: it
should be perpetual.” (Ricketson, 754)

Explain this statement. Why do you think that copyright protection is almost never perpetual in actuality?

-tapi kalau benda ni natural rights , there shouldn’t be any limit to it!ddedepen

-Should not be too ong (page 757) because the justification of CR protection is to incentivize for further creation , so
length of protection should be no more than necessary than what was needed to encourage activity.

-If fame and recognition play a relevant role in an author’s decision to create, the term of protection should be
discounted

-what term publisher cukup nak invest

-to ensure growth of the public domain

-How much protection and how long

-the more absolute the right the more difficult it becomes to justify a long term of protection

-CR doesn’t protect the ideas or facts contained in CR works, but simply the form in which they are manifested or
expressed.

-These liitations allow for the development of a growing public domain that is open to all to use.

-The need to provide for Dependants

-tapi Ricketson thinks that patutnye tak payah la fikir pasal dependants pulak while we’re talking abt this?!

 How long should this post mortem auctoris period of protection be

o It should last for at least two generatios of descendants.
o Masouye, 1959 suggests that because of the increased life expectancies, each generation should
be accorded protection for its notionallife, meaning something like 60 / 70 years. – resulting in a
total post mortem auctoris term of 120 years.
o Such a term borders on the fantastic : if adopted , it would mean that the term of protection for an
author who died in the last decade of the 19 th century would not end until well into the 21
o A more realistic measure for a generation therefore might be a period of 20-25 years based on the
period between birth nd the attainment of adulthood
o 40 – 50 years would also be long enough , in the ordinary course of events, to cover the life of a
surviving spouse or partner
o It is far from clear why protection should exceed even the space of one generation after the
author’s death, however is calculated.

“[T]he balance of argument and evidence points to the desirability of shorter rather than longer terms of protection.”
(Ricketson, 771)

Why does Ricketson consider this to be the case? Do you agree? Since Ricketson wrote this article, the duration of
copyright has been extended in a number of ways. Why do you think this has happened?

The Costs of Protection

 A tax on readers :
o CR adds cost of works in the hands of the final consumer, whether they be readers, members of an
audience, users of a computer, program, etc.
o If a royalty is charged for the use in question, this must inevitably add to the price of the particular
product in which the work is embodied.

 The arbitrary and ephemeral character of the reward promised : The grant place and of a CR provides no
guarantee of reward to the deserving author that this will be in proportion to the merit of his/her work : the
quantum of this is entirely dependent on the market place and the vagaries of popular taste.
o Where protection is for a uniform term, there is every chance that the low-brow popular work will
receive far more return than one which has required far greater effort ad intellectual originality
and which confers real benefits on the public in terms of the information and instruction it
contains

 The incentive offered – what evidence to show that CR protection has the incentive effect which is alleged?

-Unformity of Term

 Uniformity is desirable , especially at the international level

 Uniformity brings certainty, simplicity and reduced transaction costs
 It may well be possible to determine the length of protection of works on an individual basis, according to
such criteria as merit of the time needed for the cost of production to be recouped.
 Differential terms between individual works would cause inconvenience and uncertainty for third parties
wishing to use those works.
 Different terms of protection (btwn diff works) justified – bcs
