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The Myth of European Term of Protection Harmonisation

This blog post is based on Christina’s paper, “The Myth of European Term Harmonisation – 27 Public Domains for 27 Member States”. This is a shortened version of the post – the full version is available on the OpenGLAM blog.

Copyright is supposed to be a temporary right: once it has expired, works automatically fall into the public domain for free public access and enjoyment. The importance of this arrangement is especially essential today, in view of the opportunities that internet technologies offer for the online distribution and reuse of out-of-copyright works: electronic repositories of culture such as Europeana, Project Gutenberg or Google Books are currently attempting to digitise and make available online out-of-copyright works, while modern participatory culture means that even individual users can more easily share old works or incorporate them into their own creative output.

Public domain calculators are technical tools to help determine when a work falls into the public domain. The idea is to provide a measure of legal certainty to cultural heritage institutions, as well as the average user, that they are not inadvertently infringing creators’ copyright, allowing them to confidently work with material for which copyright has expired and thus helping to sustain a vibrant, up-to-date and functional public domain.

As has been mentioned before on this blog, as part of the EuropeanaConnect project, Kennisland and the Institute for Information Law (IViR) of the University of Amsterdam set about creating one such calculator, concentrating on the term of protection rules in Europe. With the final tool now ready and available online, below we shall lay out some of the main conclusions drawn during their building process on the intricacies and limitations of European term of protection rules.

Term Disharmonisation and its Causes

When does a work enter the public domain? In EU Member States, the answer to this question should at least be “at the same time” – the Term Directive, one of the first European copyright directives adopted, was intended to leave no room for national deviations from the harmonised European norm.

Nevertheless, careful examination of the Directive’s rules reveals that it has not entirely succeeded in this objective. The way in which the rules laid down by the Directive have been incorporated into national law has differed from Member State to Member State, leading to divergences of up to fifty years for particular works! As a result, the composition of the public domain differs from country to country, as works fall out of copyright on different dates in different EU Member States: the European public domain contracts and expands along the pattern set by national legislative quirks.

The construction of the Public Domain Calculators helped identify the following main sources of legislative variability in this area:

1. Inconsistent Terms = Inconsistent Term

Inconsistency in substantive legal terms is rife, leading inevitably to inconsistency in term calculations. A work may qualify as a work of joint authorship in one jurisdiction, a collective work in another and as a collection of two or more separate works in a third, producing totally different periods of protection. The European Commission has addressed this problem with the recent amendment of the Term Directive in September 2011 for co-authored musical works, but has left the problem in other areas looming.

2. Exceptions to Harmonisation

The next problem is the array of explicit exceptions within the Term Directive. These occur in three areas: transitional provisions preserving longer terms of protection already running in a Member State (of which there are plenty); moral rights, an area generally left untouched by European legislation; and related rights over subject matter originating from outside the EU.

3. Related Rights

The Term Directive limits itself to the related rights of performers, producers of phonograms, broadcasting organisations and producers of first fixations of films. But Member States are allowed to introduce or maintain other related rights whose term will be determined exclusively by national law.

A variety of such rights can be found across the EU, from non-original photographs (Austria, Denmark, Finland, Germany, Italy, Spain, Sweden) to the typographical arrangement of a published edition (Greece, Ireland, Spain, UK), producing a maze of different rights each with its own term of protection.

4. Incorrect Implementation

Finally, divergences between Member State rules might simply result from the incorrect implementation of the Term Directive. Although this is obviously a risk run with any harmonising attempt, the complicated calculations, hierarchy of rules and transitional provisions of the Term Directive do not lend themselves to smooth transposition.

Conclusion

The calculation of the term of protection ought to be a straightforward exercise that any copyright layperson (or at least those with enough copyright knowledge to be able to properly identify the applicable rights) should be able to confidently undertake. Yet this is far from the case.

This effect was illustrated in the Public Domain Calculators by the need for separate electronic tools, giving on occasion very different results, for each of the 30 jurisdictions covered, including the 27, ostensibly harmonised, EU Member States. This effectively illustrates the way in which the incomplete harmonisation of the term of protection increases the complexity of the calculation process in Europe x27! The Calculators are as a result accompanied by a broad disclaimer, explaining that they cannot replace the case-by-case assessment by a legal expert, while it is also for the above reasons that the very concept of automated calculation is warily approached by copyright experts.

But the problem lies not with the concept of electronic term of protection calculation in itself, but with outdated, badly harmonised and obscure rules that fail to live up to the requirements of the internet era, thus hampering end-users and cultural heritage organisations from taking full avail of the new opportunities now technically available. Certainly, the full harmonisation of European rules on the term of protection would not do away with the difficulties created by the current, particularly convoluted, calculation process – but it would go a very long way towards simplifying the requirements for rights clearance across the EU by replacing 27 sets of complicated rules with only one.

Readers are invited to give feedback on the Public Domain Calculator on the pd-discuss list.

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