Wednesday, July 16, 2008

EU Press Release on Term Extension

Here is a link to the EU's Press Release today proposing the extension of term for sound recordings from 50 to 95 years. As the Press Release notes, there is an additional proposal to deal with the problem of term for co-authorship for musical compositions. The proposal is the same as that found in U.S. law:

In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author's death.

Here's a teaser though: what is the term for a co-written work where one author is an individual and the other author has created the work as a work for hire?

11 comments:

Anonymous said...

Great teaser -- I had come across that scenario in thinking about the copyright for an interview.

I would love to know the answer!

Anonymous said...

I read section 302. I am reasonably capable at these things. I can't tell as a certainty but I expect that the respective interests of the two authors last only for the respective terms available to them even though that makes little sense in terms of a joint work. The work-made-for-hire interest is 120/95 and the non-wmfh interest is life plus 70. ? ? ?

Mike Perry said...

Even more interesting, what if the composer writes several nearly identical passages and lets each of his children (or grandchildren, even the baby) 'select' which becomes part of the whole. They become co-composers.

In the case of a young grandchild, a clever composer could add half a century or mote to the copyright with this simple strategy.

It's an illustration, perhaps, of the inherent silliness of "life plus" copyright terms. The real silliness lies in the fact that, if the author is obscure, it's hard for anyone to know when the copyright expires. Life+ copyrights foolishly assume every author and composer is famous.

Fixed terms long enough to care for an author and spouse in their own age (but no more) make the most sense.

Anonymous said...

If one represents an aging and previously successful author, one strategy is to have his/her new works written as wmfh for a corporation in which heirs have an interest and then to avoid publication of those works for as long as possible. An obvious drawback could be the loss termination rights. But the desirability of preserving termination rights would depend on the type of work and the type of licensing available for that work.

Max said...

I have a feeling that the Copyright term lasts until the longer of 120/95 or life of the individual plus 70 years.

Timothy Phillips said...

They are putting forward poor session musicians as their poster children. The poor session musicians will get 45 years of additional income, they say.

I suspect, though, that most European session musicians don't get a royalty contract; that most session musicians are not in a strong enough bargaining position to get more than a flat fee. I suspect that the additional income from this term extension, if it is adopted, will go mainly to the labels, not to the musicians.

Andy Ramos said...

Hi,

In Europe we don't have a "work-for-hire" scheme like you do in the U.S.

We basically have three types of works: those created by a single author; by several authors working jointly; or by several authors working under the supervision and coordination of a third person, which in no case can be considered the "author" of the work but the owner of the copyrights. Remember that moral rights are a big deal here, therefore in no event a company can be considered an author because this institution is reserved exclusively for natural persons.

The answer to your question in Europe is really simple: life plus 70 years, because the term is the same in any case, it only change when there is more than one author and they create a work under the abovementioned rules.

The European Commission has been trying for quite a long time to extend the term of the copyright rights for some of the neighboring right-holders (including performers and producers), and it seems that they will finally get it.

In Europe we have problems more important than the extension of this term.

Cheers!

Andy

William Patry said...

Hi Andy, yes, I was asking the question under U.S. law.

William Patry said...

P.S. I don't know the answer to the teaser either, and its like another one: say the work is jointly authored by a private party and by a US government employee acting within the scope of his or her employment? No copyright, half copyright, what would a half copyright look like since joint authors have an undivided proportional interest in the whole?

Copycense said...

I don't know the answer to either question. It seems the two questions have a significant difference: question 1 deals with two private parties wrestling over term of protection (with protection presumed), while question 2 considers a dichotomy between ownership and protection on one hand, and the public domain on the other.

As to this second question, I suppose one's proposed answer depends upon perspective.

If you consider copyright as a regime whereby the public domain is the default status, and the copyright monopoly is an exception to that default public domain status, then you'll lean toward considering the work as a U.S. government work (and therefore not subject to copyright pursuant to Section 105).

On the other hand, if one considers copyright protection as the default way of things, and that the public domain is an exception to Section 106 rights -- which I suppose is reasonable if you consider the length of the current U.S. term -- then you will lean toward the private party's right to protection (presuming, of course, originality and fixation).

I am sure there are constitutional considerations in Question 2 that are far beyond my knowledge base, but this is how I might begin analyzing the second question.

Peter Hirtle said...

What a great question. 302(b) applies to joint works "prepared by two or more authors who did not work for hire," but it is silent on the term for joint works where one of the authors was WFH.

I would like to think that the term would last for the longer of Life +70 and 95/120, but why doesn't the language say this? The section could read "In the case of a joint work prepared by two or more authors, the copyright endures for a term consisting of the longer of the term each would have had if they had created the work on their own."

Poor drafting? Or something meaningful in the omission?

As for a joint private/government work, using the model above, I would say the private party has life +70, the govt. has nothing in the US, but the govt. gets to share in the private author's copyright for the life + 70 term. (It can, of course, own 3rd party copyrights.) Overseas, they would both own whatever the local copyright term is (probably life +70, since as Andy Ramos noted, WFH seems to be distinctly American). This makes sense to me - but it is hard to find it in the law.