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The Global Garrotting of the Public Domain

By William Patry

The World-wide Tragedy of Life Plus 70

It all started in the bowels of Brussels, a vision of bureaucrats who wished to create an EU-wide IP law. This involved selecting areas in which to ?harmonize? the IP laws of member states. First it was software, later term of protection, where disparities in term presented a ripe subject for harmonization. The disparities were exaggerated, however, since under non-discrimination principles, EU countries with a longer term had to grant authors from other EU countries that longer term.

The EU could have stuck with the Berne standard of life of the author plus 50 years; even if it was worried about countries with a longer term, it could have mandated a life plus 50 term for all future works, and grandfathered in terms above life plus 50 for existing works. But it didn?t. Then, in a departure from national treatment (but consistent with the rule of the shorter term), the extension of term for non-EU works was reciprocally granted only to works from countries which granted EU authors life plus 70.

The U.S. content industries eagerly pounced on the reciprocal nature of the EU directive as a way to increase the term. But the U.S. also could have avoided the vast majority of the ill-effects of term extension if the U.S. had merely two-tiered term here; that is, granted life plus 70 only to works from the EU (and under the most favored nation requirements of Article 4 of the TRIPS agreement, to all other TRIPS members), leaving in place life plus 50 for all other works, especially U.S. works. This is what happened with section 411(a) when we joined Berne in 1988: we left in place the requirement of registering before an infringement suit for U.S. works, but abolished it for Berne works.

But for U.S. content owners, the EU reciprocity provision for term extension was merely a stalking horse for the greater prize: extending the term 20 years for U.S. works., and not just any U.S. works, but pre-existing ones, whose term would go from 75 to 95 years from publication, after already having been increased from 56 years to 75 years in 1978. It is these old act works that content industries were concerned about, not new act ones governed by life plus 50: after all, who in 1998, when term extension was passed, was worried about works whose term of protection were scheduled to expire in 2073? Who knew in 1998 what works would be worth anything in 2073? No one. But people in 1998 did have a fair idea about works created 75 years before are still be valuable. So to be clear about the purpose of term extension, it has always been about the past, not the future; it has always been about keeping pre-existing works out of the public domain and not about any alleged incentive to create new ones.

After the U.S. extended its term, the Office of the United States Trade Representative (USTR) went about vigorously imposing term extension on other countries as part of Free Trade Agreements. The latest is with Korea. An article yesterday in Korea Times, by staff reporter Kim Yon-se (link here) points out the troubles this has caused Koreans and how the Korean government has attempted to work around these troubles:

Under the revision book publishers and entertainment-related businesses will be required to pay royalties 20 years longer than is currently required.

Local publishers complain that companies may be not be able to publish as many translated books as they do now, not only because of costs but also due to more complicated and tightened requirements for copyright protection.

As a solution, the government has pledged to allocate 160 billion won for the publishing industry by 2011. It also plans to establish a publishing information center to offer necessary data to the public as well as the industry.

What I find depressing about this is that in order to placate USTR, which in turn is placating large U.S. content owners, fewer translated books will be available to Korean citizens; plus, the Korean government is being forced, effectively, to subsidize payments to U.S. content owners through an attempt to keep its own publishing industry afloat. Moreover, none of this addresses the effect on those who are not part of the Korean publishing houses, such as ordinary citizens, scholars, and others who wish to use works that otherwise would be in the public domain, and none of it addresses non-literary works, such as film and music.

The tragedy of life plus 70 has now been spread far from its roots; it is a tragedy that can never be reversed, and worse, whose ill effects are continuing to be spread. We are witnessing the global garroting of the public domain.

Full post as published by The Patry Copyright Blog on December 19, 2007 (boomark / email).