duration

This page considers the duration of intellectual property protection, in particular that of copyright.

It covers -

• introduction - what is duration and why does it matter?
• how long does copyright last?
• extension - debate about extended protection in the EU and US (eg the CTEA or 'Sonny Bono' Act)
• in Australia
• at a glance - pointers to a profile identifying protection in Australia, New Zealand and other countries

     introduction

Preceding pages of this guide have noted that intellectual property encompasses copyright, patents, trademarks, plant variety rights, designs and other protection for creativity or investment.

The period during which protection is provided depends on the type of intellectual property (copyright for example generally provides a longer protection than that under designs legislation). It also depends on the particular jurisdiction. Overall, intellectual property protection - like love - does not last forever.

Arguments that it is a monopoly often skate over the fact that it is a short-term monopoly with significant exceptions (eg in copyright for fair dealing or fair use), although perceptions of significance depend on where you are located in the intellectual property food chain. 

     how long does copyright last?

Protection usually lasts for the life of the author plus x years or for x years from first publication in the case of content (such as films) created by corporate entities rather than an individual author.

The duration of protection in the online and offline environments is contentious

• different countries use different formulas for determining the period of protection, so a work can be out of copyright in one part of the world but still in copyright in another country that's just a few kilometres (or a mouse-click) away
• authors and publishers have sought to harmonise the period of protection or otherwise extend it, arguing that extension reflects the longer lives of creators or the scale of investment in major works
• critics, often more vocal than cogent, have complained that extension is immoral, unconstitutional or simply unnecessary

Specific variations in the duration of protection, and the global move to 'life plus 70 years' are illustrated in a supplementary profile.

That profile also points to resources for identifying whether a work is in copyright, for example the WATCH (Writers, Artists & Their Copyright Holders) database, discussed in more detail here.

The advent of web publishing has revived the debate about the length of protection, with arguments for example that copyright should be for a short and strictly limited period such as ten or twentyfive years.

Such arguments are inconsistent with publishing realities: a best-seller may recoup all its costs and generate significant profits over a period of three years but thereafter sell only a few copies, whereas work of less transient value may sell slowly but steadily over a long period.

US lawyer Kevin Grierson commented that

If copyright is truly a moral right of the author, then the only reason for limiting copyright at all is a sort of "rule against perpetuities" for intangible property, that at some point it just doesn't make sense to allow the "dead hand of the past" to guide the future. If, however, copyright is just a market incentive to encourage creation of new works, then the term of copyright should be no longer than that necessary to encourage such creation.

Unfortunately, there is little agreement about the extent of the appropriate incentive for creativity and its distribution.

     extension

Among the recent raft of papers and books on the duration of copyright and other intellectual property - debate about the whether Australia should follow the EU in protecting copyright for the author's life plus 70 years (rather than the current 50 years) or reduce the much shorter period of protection for patents - works of particular significance are -

• Copyright Protection: Duration, Term Extension, The European Union & The Making Of Copyright Policy (San Francisco: Austin & Winfield 1998) by Robert Bard & Lewis Kurlantzick
• Copyright Term Extension: Estimating the Economic Values (Washington: Congressional Research Service 1998) by Edward Rappaport
• 'The Copyright Term' by Sam Ricketson in 23 International Review of Industrial Property and Copyright Law 6 (1992).

Allen Consulting, on behalf of the Motion Picture Association, with endorsement by the Australasian Performing Rights Association, Copyright Agency Limited and Screenrights released a report (PDF) on the cost and benefits of extending the duration of copyright in Australia. It was prepared as an input into the Australia-United States Free Trade Agreement negotiations.

Dennis Karjala of Arizona State University maintains a site opposing the extension of protection in the US. It is perhaps most valuable for its access to the US Senate Committee report on the Copyright Term Extension Act of 1996 (also known as the Sonny Bono Act), the critique by film historian Douglas Gomery and developments such as the Supreme Court's decision (in Eldred v Reno) that Congress did have the power to extend the term of protection.

The 1996 US Act is most contentious for its extended protection of corporate works, with much US criticism centred on the Disney studios and other contemporary demons such as the RIAA. Works by individual authors gained an extra 20 years of protection (ie the author's life plus 70 years, up from life plus 50 years), with protection of content created by corporate authors - for example many animated films - increasing from a flat 75 years to a flat 95 years.

Lawrence Lessig suggested that copyright should last for a mere five years (renewable 15 times, except for copyright on software, only renewable once) and mandatory licensing of music for a reasonable fee. Richard Stallman called for a flat ten year period of protection. Rufus Pollock's 2007 Forever Minus A Day? Some Theory and Empirics of Optimal Copyright (PDF) asserts that the "optimal" period of protection is 14 years, provoking one reader to comment that the optimal lifespan for many Australian males is 24 ("live fast, die in your prime before your hair falls out and you get tired of reading Oxbridge dissertations").

For us there is more bite in Arnold Lutzker's paper on What the Digital Millennium Copyright Act & the Copyright Term Extension Act Mean For The Library Community and The Copyright Term Extension Act of 1998: An Economic Analysis (Washington: AEI-Brookings Joint Center for Regulatory Studies 2002) by George Akerlof.

A table of different periods of protection in the US is here. The Berkman Center has a similar site based on the Eldred v Reno dispute. The historical background is discussed in Tyler Ochoa's 'Patent & Copyright Term Extension & the Constitution: A Historical Perspective' in the Journal of the Copyright Society of the USA (2002). There is a cogent note from Australia in Matthew Rimmer's 2003 article The Dead Poets Society: The Copyright Term and The Public Domain.

Various anti-extension advocacy groups exist in the US and elsewhere, ranging from the EFF through to specialists such as the rather silly "No Cense" Copyright Reform Campaign and enthusiasts whose sites feature clocks with a countdown until particular "ideas are free of their copyright prison".

There has been far less attention to claims that enactments such as Tennessee's 1984 Personal Rights Protection Act provide 'rights of publicity' protection in perpetuity for the Elvis Presley estate and other popular culture idols, highlighted later in this Guide.

The US debate is clouded by genuflections towards the nation's founding fathers (often presented as figures whose distaste for intellectual property law exceeded their abhorrence of government), although we note that the founders were comfortable with slavery and a male-only franchise.

For an illustration of questions about duration and control by widows, children, grandchildren or other heirs see Keepers of the Flame: Literary Estates and the Rise of Biography (London: Faber 1994) by Ian Hamilton, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (Ann Arbor: Uni of Michigan Press 1999) by Joseph Sax and Private Matters: In Defense of the Personal Life (Reading: Perseus 1997) by Janna Malamud Smith.

Robert Cogswell's Copyright Law for Unpublished Manuscripts & Archival Collections (New York: Glanville 1992) supplements major archival professional publications but is concerned with US law and should thus be used with caution in Australia and New Zealand.

     in Australia

In February 2004 the Australian government announced that protection in Australia would be extended to life plus seventy years, as part of implementation of the Australia-US Free Trade Agreement.

The announcement alas reflected the power of US industry interests in negotiation of the FTA rather than Australian government concern for local creators - a demonstration of the 'geopolitics' of IP. The copyright provisions of the US Free Trade Agreement Implementation Act 2004 commenced in late 2004, extending protection from a life plus fifty years model to a life plus seventy years model.

Many Australian photographs were formerly protected for 50 years from first publication and might thus pass out of copyright during the photographer's lifetime. That was regrettable, since the merest scribble of a three year old (or her grandfather) is protected for life plus 50. Reform by the Commonwealth government moved at a glacial pace prior to implementation of the FTA, which established protection on the basis of the photographer's life plus fifty years. A brief government discussion paper is here.

     and resurrection?

Australian copyright law, unlike that for patents and trademarks, does not provide for 'renewal' of copyright protection. Once the duration of protection has expired the work becomes part of the public domain. Protection can't be resurrected or revived by the owner or by another entity.

However, the legislation provides some protection - generally short term - for investment in 'editorial' activity, which embraces such things as the creation of footnotes or other scholarly apparatus, selection of works for a compilation and the arrangement of text on a page.

Shakespeare, for example, is long dead and - in line with the life + 50 model - his heirs aren't surfing a wave of copyright royalties. However, the creativity of editors of new editions of Shalespeare's prose and the investment of publishers in preparing different editions is rewarded through short-term protection for the specific edition.

It is important to note that many sound recordings, films and multimedia works comprise bundles of rights - which may be protected for different periods.

A music CD, for example, usually contains -

• copyright in the music (composer's life plus 70 years in Australia)
• a separate copyright in the lyrics (songwriter's life plus 70 years)
• a separate copyright in the recording (for pre-1969 recordings that protection lasts for 70 years from the end of the year in which the sound was captured)
• a separate copyright in any original artwork and features of the cover.

     Australian protection at a glance

A profile identifying specific features of the duration of protection in Australia is here and in New Zealand is here. Information about other countries is here.



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