Copyright 2020 features 14 jurisdictions. Copyright covers governing law, essential elements of copyright protection, management systems, collectives, exceptions, infringement and litigation.
Last Updated: February 18, 2020
Copyright’s 20/20 Vision
What is the state of copyright law across the world in the year 2020? The turn of a decade affords the opportunity to take stock of where we stand and where we may be heading.
From my Amerocentric perspective, let me start with the US statute. For most of the twentieth century, the governing copyright law was the 1909 Act. That statute embodied distinctly American formalities, incompatible with the scheme followed in the rest of the world pursuant to the Berne Convention (initially adopted in 1886). Indeed, the US could not then join the Berne Union precisely because of those parochial formalities.
In 1955, Congress began a series of studies to replace the 1909 Act, culminating two decades later with enactment of the 1976 Act. It passed that law with “a weather eye on Berne,” setting the stage for eventually joining that overarching Convention and discarding the unwieldly tangle of US formalities. This legislation continues to govern to the present day. But its enactment was hardly the final word. Congress has returned to amend the 1976 Act roughly every six months, passing over 80 amendments to it over the decades since.
The long arc
The long arc reveals an interesting perspective. Those biannual revisions added more and more bulk to the statute. What started out as 45 pages grew over time to exceed 250 pages. Every year brought more and more verbiage.
It is therefore highly noteworthy that the trend is beginning to reverse. For the first time in decades, the Act has diminished in size with the turn of the calendar into 2020. The particulars are as follows: Starting in 1988, Congress added to the Copyright Act various specialised amendments to regulate satellite television. Each of those additions was scheduled to last only from three to five years - but before any of them could expire, Congress would habitually pass another interim amendment. The process continued for decades, until the last one: the STELA Reauthorization Act of 2014, lasting through 2019. That is why 1 January 2020, represents such a milestone: on that date, all of those specialised amendments finally terminated. Thus, 22 pages that had been accreted to the Act over time fell into desuetude, the first time that a major portion of the 1976 Act has actually gone inactive.
In the same spirit, the turn of 2020 saw George Gershwin’s Rhapsody in Blue and other works from 1924 finally enter the US public domain. Previously, Congress had extended all terms for 20 years via the Sonny Bono Copyright Term Extension Act, passed in 1998. Some thought that Congress would return to that domain within twenty years to continue the process. But the deadline passed without fanfare, so again we are witnessing the shrinkage of copyright protection in some respects, at the same time that it expands in others.
Another fascinating aspect of the long arc that becomes clear in 2020 concerns periodic intervals. Not only did it take two decades for the 1976 Act to germinate, but its major revisions have also unfolded at two-decade intervals. The enactment itself took effect on 1 January 1978. Then came a major earthquake in 1998. First, the above-cited Sonny Bono Act extended all terms from 50 years post mortem auctoris (pma) to 70 years pma. That amendment played catch-up with the European Union, which itself had adopted the 70-year pma term some years earlier. This harmonization continued the process that had begun in 1976, as mentioned above.
Digital Millennium Copyright Act
The other major change in 1998 was adoption of the Digital Millennium Copyright Act. The US became the first major country to amend its copyright statute in order to implement the 1996 WIPO Copyright Treaties, a later instalment to the Berne Convention scheme.
Music Modernization Act
Right on schedule two decades later, another earthquake hit US copyright law. In 2018, Congress passed the Marrakesh Treaty Implementation Act, cementing even further the process of international harmonization. But the other major change from 2018 is of even greater moment—Congress passed the Music Modernization Act to completely revamp the sphere of digital delivery of music to consumers. (USA Law and Practice 6.1). To give an idea of the magnitude of that amendment, the entire 1976 Act at its passage ran 45 pages—in contrast, this single 2018 amendment consumed 65 pages! Included in it are elaborate features to establish a Mechanical Licensing Collective that will administer a comprehensive Musical Works Database. Ironically, that domain, designed to streamline digital commerce, establishes yet a new species of formalities - as such, it is not altogether removed from the baleful status of US copyright during most of the twentieth century. Yet this new innovation is designed to set the stage for the twenty-first century. Plus ça change, plus c'est la même chose.
The rest of the world
It is now time to broaden our focus. Having concentrated on US copyright law, how do the features digested above dovetail with the laws of other nations? The pages that follow canvas each of copyright regimes followed in 14 jurisdictions. We can derive from those treatments the conclusion that world copyright law is resolutely anti-formal, continuing the arc representing the transition of US copyright law.
We also see that the rest of the world has largely followed the US lead represented by its 1998 Digital Millennium Copyright Act in adapting their domestic copyright laws to the requirements of the WIPO Copyright Treaties. Some nations even provide for violators of those rights to be imprisoned (Taiwan Law and Practice 5.1 Anti-circumvention Right; Mexico Law and Practice 5.1 Anti-circumvention Right). Related procedures relate to injunctions against internet providers (Italy Law and Practice 9.11 Enforcement), not to mention the “dynamic injunction” entered by the Delhi High Court (India Trends and Developments). Nonetheless, few things in life are universal. It therefore must be acknowledged that some nations have not yet adopted these strictures into their national laws (Israel Law and Practice 5.1 Anti-circumvention Right; Brazil Law and Practice 5.1 Anti-circumvention Right).
As just described, the US innovations of 1998 have now percolated into the rest of the world. What about the US innovations of 2018? No other nation has yet adopted the elaborate scheme embodied into the Music Modernization Act. It remains to be seen whether other nations will follow suit over the years to come, just as occurred as a sequel to the Digital Millennium Copyright Act of 1998. It took many years before other nations began to adopt their own strictures for copyright management information and anti-circumvention along the lines of that 1998 enactment, so it is premature to tell yet whether the Music Modernization Act is destined to become the worldwide template for the future.
In the meanwhile, we can perhaps observe certain harbingers on the horizon—for instance, there is the recent Spanish regulation that establishes a Ventanilla Única (“one-stop-shop”) for private copy remuneration, which inclines in the same direction as the US Music Modernization Act (Spain Law and Practice 7.2 Private Copying). Along similar lines are the recent introduction into Greek law of two major types of collective rights management organisations (Greece Law and Practice 6.1 Collective Rights Management). Seemingly inclining in the opposite direction, however, is the recent refusal by the Paris Court of Appeal to offer protection to a musical television show. (France Law and Practice 2.7 Protection for Distinct Categories).
The myriad features covered in this volume create a fascinating canvas, but it is too soon to project a line from the isolated data points just summarised. The hungry reader will find plenty of copyright nourishment across the pages that follow. Whether they are leading the world as a whole to converge in the direction of the US Music Modernization Act, it is too soon to predict. For that purpose, the interested reader must stay tuned next year for Chambers’ 2021 review, to see how those matters further develop!