Rule of shorter term
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The rule of the shorter term, also called the comparison of terms, is a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment to no more than the copyright term granted in the country of origin of the work.


Fundamentals

International copyright treaties such as the Berne Convention (BC) or the Universal Copyright Convention (UCC) work through national treatment: signatory countries agree to grant copyright to foreign works under their local laws and by the same rules they grant copyright to domestic works. Whether a work is eligible to copyright, and if so, for how long that copyright exists, is governed by the laws of the country where copyright on the work is claimed.Berne Convention:
Article 5(2)
''. Retrieved 2007-05-20.
The Berne Convention and also the UCC define only the minimum requirements for copyrights that all signatory countries must meet, but any country is free to go beyond this minimal common denominator in its legislation. This is most noticeable in the duration for which copyrights are upheld. The Berne Convention lays down a minimal general copyright term of 50 years beyond the death of an author (50 years '' p.m.a.'').Berne Convention,
Article 7(1)
''. Retrieved 2007-05-20.
But many countries have a longer term, such as 70 years ''p.m.a.'', or even 100 years ''p.m.a.''. One and the same work may thus be copyrighted for different times in different countries (since, per ''
lex loci protectionis In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the ''lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1 ...
'', the copyright rules of each country apply within its jurisdiction, regardless of the work's country of origin). Its copyright may have expired already in countries with a minimum term, but at the same time, it may still be copyrighted in other countries that have longer copyright terms. National treatment may thus lead to an imbalance: works originating from countries with minimal copyright terms are copyrighted longer in other countries that have longer copyright terms. In that situation, works from a country that goes beyond the minimum requirements of a treaty may already have entered the public domain in foreign countries with shorter copyright term while still being copyrighted at home. In such cases, the rule of the shorter term makes allowance for
reciprocity Reciprocity may refer to: Law and trade * Reciprocity (Canadian politics), free trade with the United States of America ** Reciprocal trade agreement, entered into in order to reduce (or eliminate) tariffs, quotas and other trade restrictions on ...
in exception to the normal national treatment. Countries with a long copyright term may apply only the shorter foreign term to works from countries that have such a shorter term.


Universal Copyright Convention

In the Universal Copyright Convention, the comparison of terms is spelled out in article IV(4)(a), which reads: Addressing concerns of the Japanese delegation, the conference chair clarified that this subsumed the case of classes of works that were not copyrightable at all in their country of origin (as specified), as these would have a copyright term equal to zero. Thus other countries would not be obliged to grant copyright on such foreign works, even if similar domestic works were granted copyright.Patry, W.:
Choice of Law and International Copyright
', 48 Am. J. Comp. L. 383, ''American Journal of Comparative Law'', 2000. On the ''Hasbro'' case and the UCC, see section III.B.1 and footnote 73. Archived URL last accessed 2007-05-20.
The application of article IV(4)(a) is not mandatory: "not being obliged to" is not equivalent to "being obliged not to".


Berne Convention

In the
Berne Convention for the Protection of Literary and Artistic Works The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of l ...
, a similar rule exists, but not for "classes of works" but considering individual works. Article 7(8) of the Berne Convention reads: Again, application of this rule is not mandatory.Schricker, G.: ''Urheberrecht: Kommentar'', 2nd ed, p. 1021. C. H. Beck, Munich 1999. . Any country may "provide otherwise" in its legislation. To do so, it is not necessary to include an explicit exception in the domestic copyright law,WIPO, ''Records of the Intellectual property Conference of Stockholm, June 11 to July 14, 1967,'' p. 109. Geneva 1971. as the example of the United States shows. The Berne Convention also states in article 5(2) that the enjoyment and exercise of copyright This specifies national treatment, and also makes the existence of copyright on a work in one country independent from the existence of copyright on the work in other countries (''
lex loci protectionis In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the ''lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1 ...
''). A WIPO study in 2011 recommended that «The difficulty of the rule of the comparison of terms applicable to the duration for protection, as provided by Article 7(8) of the Berne Convention, should at least be assessed».


Bilateral copyright treaties

The terms of existing or new bilateral treaties may moreover override these conventions, as long as such bilateral treaties meet the minimum requirements of the conventions. This is defined in article 20 of the Berne ConventionBerne Convention:
Article 20
''. Retrieved 2007-05-20.
and in articles XVIII and XIX of the UCC.Universal Copyright Convention:
Articles XVIII and XIX
', Paris text of 1971. Th
Geneva text of 1952
is identical. URLs last accessed 2007-05-20.


Worldwide situation


Situation in the United States

When the United States joined the Berne Convention, Congress explicitly declared that the treaty was not self-executing in the United States in the
Berne Convention Implementation Act of 1988 german: Berner(in)french: Bernois(e) it, bernese , neighboring_municipalities = Bremgarten bei Bern, Frauenkappelen, Ittigen, Kirchlindach, Köniz, Mühleberg, Muri bei Bern, Neuenegg, Ostermundigen, Wohlen bei Bern, Zollikofen , website ...
, section 2 (BCIA, Pub. L. 100-568).United States Congress:
Berne Convention Implementation Act of 1988
'', Pub. L. 100-568. Retrieved 2007-05-20.
The BCIA made clear that within the U.S., only U.S. copyright law applied, and that U.S. copyright law, as amended by the BCIA, implemented the requirements of the Berne Convention (although it did not implement §18(1) of the Berne Convention, a deviation that was corrected by the
Uruguay Round Agreements Act The Uruguay Round Agreements Act (URAA; ) is an Act of Congress in the United States that implemented in U.S. law the Marrakesh Agreement of 1994. The Marrakesh Agreement was part of the Uruguay Round of negotiations which transformed the General ...
(URAA) in 1994). This statement from public law 100-568 is repeated in the U.S. Copyright law in 17 USC 104, which assimilates foreign works to domestic works and which furthermore states in 17 USC 104(c) that Any requirements from the Berne Convention thus needed to be spelled out explicitly in the U.S. Copyright law to make them effective in the United States. United States House of Representatives:
The House Statement on the Berne Convention Implementation Act of 1988
'', Congressional Record (Daily Ed.), October 12, 1988, pp. H10095f: ''"In short, for any act of the Berne Union to be effectively implemented in the United States will depend upon Congress so legislating."'' Retrieved 2007-05-25.
But Title 17 of the
United States Code In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
does not contain any article on the rule of the shorter term. The only mention of such a rule was added in 1994 with the URAA in 17 USC 104A, which automatically restored copyrights on many foreign works, unless these works had already fallen in the public domain in their country of origin on the URAA date, which is January 1, 1996 for most foreign countries. Because there is no general rule of the shorter term in U.S. Copyright law, U.S. courts have declined to apply that rule on several occasions.


US case law

A notable pre-Berne American case involving the rule of the shorter term was ''Hasbro Bradley, Inc. v. Sparkle Toys, Inc.'' ( 780 F.2d 189 (2d Cir 1985)). Hasbro was distributing Japanese action figures in the U.S. under an exclusive license and claimed copyright on these toys. Sparkle Toys, which distributed exact copies of the toy figures, contested Hasbro's copyright claims.Judge Friendly
''Hasbro Bradley, Inc. v. Sparkle Toys, Inc.''
780 F.2d 189, Second Circuit, 1985. Retrieved 2007-05-20.
The court concluded that Hasbro was entitled to copyright despite the fact that were not copyrighted at all in Japan and did not bear a copyright notice.
William F. Patry William F. Patry (born January 1, 1950 in Niskayuna, New York) is an American lawyer specializing in copyright law. He studied at the San Francisco State University, where he obtained a B.A. in 1974 and an M.A. in 1976, and then at the University of ...
has opined that the judge mistakenly concluded that the U.S. was required to grant copyright on these toys. Patry also concedes that under the Berne Convention, the U.S. would indeed be required to grant copyright to foreign works, even if such works were not copyrighted in their country of origin as per article 5(2) of the Berne Convention. While the ''Hasbro'' case considered a special case of the applicability of rule of the shorter term in the context of the UCC, the case of '' Capitol Records, Inc. v. Naxos of America, Inc.'' (4 N.Y.3d 540, 2nd Cir. 2005) occurred after the Berne Convention.
Capitol Records Capitol Records, LLC (known legally as Capitol Records, Inc. until 2007) is an American record label distributed by Universal Music Group through its Capitol Music Group imprint. It was founded as the first West Coast-based record label of note ...
claimed copyright on old British sound recordings from the 1930s for which the copyright in the United Kingdom had expired in the late 1980s.
Naxos Records Naxos comprises numerous companies, divisions, imprints, and labels specializing in classical music but also audiobooks and other genres. The premier label is Naxos Records which focuses on classical music. Naxos Musical Group encompasses about 1 ...
, which distributed restored versions of the recordings, challenged the copyright claim. Sound recordings fall under special rules because before
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, pre-1972 sound recordings in the U.S. were not covered by federal law but by state law. The court concluded that as federal law did not apply, and because neither the Berne Convention (which is inapplicable to sound recordings in any event) nor the Rome Convention usurped
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
law, the works copyrighted pursuant to New York common law. The Uruguay Round Agreements Act and U.S. statutes did not, and had never, offered protection to these works, and the fact that they were not under copyright in the UK as of 1996 was completely irrelevant.Judge Graffeo:
Capitol Records, Inc. v. Naxos of America, Inc.
', 4 N.Y.3d 540, United States Court of Appeals for the Second Circuit, 2005. Retrieved 2007-05-20.
In ''
Golan v. Holder ''Golan v. Holder'', 565 U.S. 302 (2012), was a Supreme Court of the United States, Supreme Court case that dealt with copyright and the public domain. It held that the "limited time" language of the United States Constitution's Copyright Clause do ...
'', the Supreme Court wrote:


Bilateral treaties

Following the Chace International Copyright Act, which was signed into law on March 3, 1891 and became effective on July 1 of the same year, the United States concluded a number of bilateral copyright treaties with foreign countries. In 1891, treaties with Belgium, France,
Switzerland ). Swiss law does not designate a ''capital'' as such, but the federal parliament and government are installed in Bern, while other federal institutions, such as the federal courts, are in other cities (Bellinzona, Lausanne, Luzern, Neuchâtel ...
, and the United Kingdom became effective; treaties followed in 1892 with Germany and Italy; in 1893 with Denmark and Portugal; in 1895 with Spain; in 1896 with Chile and Mexico; and in 1899 with
Costa Rica Costa Rica (, ; ; literally "Rich Coast"), officially the Republic of Costa Rica ( es, República de Costa Rica), is a country in the Central American region of North America, bordered by Nicaragua to the north, the Caribbean Sea to the no ...
and the Netherlands. These treaties remained effective even after the United States Copyright Act of 1976 unless "terminated, suspended, or revised by the President".Patry, W.:
Copyright Law and Practice: Chapter 1 – Introduction
'. See also footnote 156. Retrieved 2007-05-20.
The treaty from 1892 with Germany was applied in a court case in Germany in 2003.OLG Frankfurt am Main:
Judgment from October 7, 2003, 11 U 53/99
'. Retrieved 2010-06-02.


Situation in the European Union

In the European Union, copyrights have been harmonized amongst the member states by the EU directive 93/98/EEC on harmonising the term of copyright protection. This binding directive, which became effective on July 1, 1995, has raised the duration of copyrights throughout the union to 70 years ''p.m.a.'' It also includes in its article 7 a mandatory rule of the shorter term for works from non-EU countries. Within the EU, no comparison of terms is applied, and—as in the Berne Convention or in the UCC—existing international obligations (such as bilateral treaties) may override this rule of the shorter term. Directive 93/98/EEC was repealed and replaced by Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights. The United Kingdom provides that, where a work is published simultaneously in multiple countries one of which is an EEA member, the terms of the EEA member state will apply. If upheld under the EU directive, this would mean that a book published simultaneously worldwide by a Canadian publisher would be subject to a term of 70 pma in UK and 50 pma in France. Germany extends the non-applicability of the rule of the shorter term to all members of the European Economic Area in §120 of its ''Urheberrechtsgesetz''.Germany:
Urheberrechtsgesetz, §120
'. Retrieved 2007-05-20.
It also does not apply the comparison of terms to U.S. works. In a case decided on October 7, 2003 by the ''Oberlandesgericht'' of Hesse in Frankfurt am Main, the court ruled that a U.S. work that had fallen in the public domain in the U.S. was still copyrighted in Germany. The court considered the rule of the shorter term inapplicable because of the bilateral copyright treaty between Germany and the United States, which had become effective on January 15, 1892 and which was still in effect. That treaty did not contain a rule of the shorter term, but just stated that works of either country were copyrighted in the other country by the other country's laws. The EU member states implemented Directive 93/98/EEC and Directive 2006/116/EC in their national law; however, it is not guaranteed that such national implementations are either "comprehensive or in conformity" with the Directives.


EU case law

Even before article 7 of directive 93/98/EC explicitly prohibited the application of the rule of the shorter term amongst EU countries, the comparison of terms within the EU was not allowed. The Treaty instituting the European Community, which in its original version became effective in 1958, defined in article 7, paragraph 1, that within the union, any discrimination on grounds of nationality was prohibited. (Since 2002, when the treaty was amended by the Treaty of Maastricht, this is article 12, paragraph 1.) Application of the rule of the shorter term is such a discrimination, as it results in granting domestic authors longer copyright terms for their works than foreign authors from other EU countries. This issue was settled decisively in 1993 (''i.e.'', two years before directive 93/98/EC became effective) by the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
(ECJ) in what became known as the ''
Phil Collins Philip David Charles Collins (born 30 January 1951) is an English singer, musician, songwriter, record producer and actor. He was the drummer and lead singer of the rock band Genesis and also has a career as a solo performer. Between 1982 and ...
'' decision. In that case, Phil Collins sued a German phonogram distributor who was marketing records of a concert Collins (a national of the United Kingdom, which was an EC member state at the time) had given in the U.S. German law of that time granted German performers full
neighbouring rights In copyright law, related rights (or neighbouring rights) are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". ''Neighbouring rights'' is a more literal translation ...
, and in particular the right to prohibit the distribution of recordings made without their consent, regardless of the place the performance had occurred. At the same time, German law granted the same right to foreign performers only for their performances that had occurred in Germany. The ECJ decided on October 20, 1993 that this was a violation of the non-discrimination clause of article 7 of the EC treaty. It also clarified that the non-discrimination clause was indeed applicable to copyright.
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
:
Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Im- und Export Verwaltungsgesellschaft mbH and Leif Emanuel Kraul v EMI Electrola GmbH
', joined cases C-92/92 and C-326/92; judgment of the court of October 20, 1993. Retrieved 2007-05-26.
The court stated that and clarified that this non-discrimination clause was not about differences between national laws, but to ensure that in any EU country, citizens and foreigners from other EU countries were treated equally: In 2002, the ECJ then ruled in the ''
Puccini Giacomo Puccini (Lucca, 22 December 1858Bruxelles, 29 November 1924) was an Italian composer known primarily for his operas. Regarded as the greatest and most successful proponent of Italian opera after Verdi, he was descended from a long lin ...
'' case (or '' La Bohème'' case) that the non-discrimination clause was even applicable to nationals of EU member countries who had died before the EU came into existence, and it also explicitly reiterated that the comparison of terms was a violation of said non-discrimination rule.ECJ:
Land Hessen v G. Ricordi & Co. Bühnen- und Musikverlag GmbH
', case C-360/00, judgment of the court of June 6, 2002. Retrieved 2007-05-26.
This case was about a performance of the opera ''La Bohème'' by Puccini by a state-owned theatre in Wiesbaden in the German state of Hesse in the seasons 1993/94 and 1994/95. Under the German laws of the time, the rule of the shorter term applied to foreign works and the opera was thus in the public domain in Germany since the end of 1980, when its 56-year Italian copyright term had run out. (Puccini had died on November 29, 1924.) Domestic works at the same time enjoyed a copyright term of 70 years after the authors death in Germany. A publisher of musical works claimed to hold the rights to Puccini's works in Germany, and took the state of Hesse to court, based on the non-discrimination clause, which he claimed prescribed a copyright term of 70 years in Germany also for foreign works. Federal Court of Justice of Germany:
Decision I ZR 133/97: La Bohème
', decision of March 30, 2000. Retrieved 2007-05-26.
The Federal Court of Justice of Germany had doubts about whether the non-discrimination clause could be applied to authors deceased before the EU existed and referred the question to the ECJ, who fully confirmed the plaintiff's reading. The court flatly rejected the interpretation brought forth by the state of Hesse that the comparison of terms was based on the country of origin of a work, not on the nationality of an author, and thus was an objective criterion and not discrimination of the grounds of nationality. The court concluded that


References


External links


Partial list of countries
and whether or not they do apply the rule of the shorter term for movies. * Geller, P.E.:

', in '' Entertainment and Sports Lawyer, 18(2)'', pp. 7ff, 2000. {{DEFAULTSORT:Rule Of The Shorter Term Copyright term International law