The new Copyright 2021 guide covers 14 jurisdictions. The guide provides the latest information on copyright protection, authorship, collective works, economic rights of copyright owners, copyright management systems, collective rights management, freedom of speech/right of information, neighbouring rights, and copyright infringement and litigation.
Last Updated: February 17, 2021
"Get Back to Where You Once Belonged"
Fifty years ago, the airwaves belonged to the British Invasion. The Beatles put out a hit tune in 1970 entitled “Get Back”. Originally released as a single with “Don’t Let Me Down” on the flip side, the song ultimately wound up on the Fab Four’s legendary album Let It Be. John Lennon’s famous parting quip has bemused generations of fans: “I'd like to say thank you on behalf of the group and ourselves and I hope we've passed the audition.”
A half-century is a long time. It brings to mind a perennial copyright question: Even when authors have given up their rights long ago, is there a way that they can regain the kingdom today? That puzzle deserves an international answer.
Before going further, it is impossible to discuss a retrospective of calendar year 2020 without placing front and centre the multiple calamities that befell the entire world. The COVID-19 pandemic invokes images from plagues of prior centuries; millions dead leave a gaping wound in our hearts. And the economic catastrophe continues to afflict people in all walks of life throughout the world.
The magnitude of those events eclipses all other discourse. However, without in the slightest minimising the many impossible dilemmas that continue to bedevil us, the present task is to illuminate something that is, admittedly, of much less moment – the progress and development of the law of copyright over the past 12 months.
It is therefore fitting to begin by noting some legislation that sprung directly out of the need to address COVID-19. In the United States, Congress amended the Copyright Act twice in response:
As part of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Congress empowered the Register of Copyrights, “on a temporary basis, [to] toll, waive, adjust, or modify any timing provision” of the Copyright Act or of pertinent regulations. That leniency persists for as long as the Register of Copyrights determines is necessary “to mitigate the impact of the disruption caused by the national emergency”.
In the last days of 2020, Congress passed the most massive legislation in the history of the United States. With an allocation of USD2.3 trillion, it was also by far the most expensive. Bearing the anodyne title Consolidated Appropriations Act, 2021, the legislation embodied efforts to recover from the devastation wrought by the pandemic – concerns that lay predominantly afield from intellectual property. Nonetheless, a few of the bill’s 2,000-plus pages were devoted to none other than timely amendments to the Copyright Act. Incorporated therein were two features that had been bouncing around the halls of Congress for several decades. One aspect extended felony status to the crime of unauthorised streaming of commercial products. The other established a system of “small claims courts” to resolve copyright disputes of modest financial impact.
Both the CARES Act and the Consolidated Appropriations Act, 2021 reflected an intense desire to restore order. More than anything else, society needed to “get back to where [it] once belonged”. At the time of writing, the matter remains a work-in-progress. We can pray that vaccines, medical intervention and good practices will lead to a recapture of old sensibilities and the capabilities that we formerly took for granted. “Don’t let me down”.
Sales are typically final. When you buy a pizza or a dining room set, a Picasso print or a diamond ring, the product is yours forever. The same applies to a second-hand hardcover book or a beloved CD – nobody has the right to come along later and dispossess you of your purchase.
Within the copyright realm, however, things are different. At least sometimes. As a result, categorically different considerations apply to the copyright of a literary work as opposed to the book in which it was printed; or to the musical composition as opposed to the CD on which it was recorded: decades after parting unconditionally with copyright ownership, the author can unilaterally claim back those same rights. To the uninitiated, the rules are head-spinning.
Let’s start with the granddaddy scheme – British reversionary rights. A complex matrix governed here, in part as to transfers executed prior to 1 July 1912, and otherwise as to transfers executed prior to 1 June 1957. In some instances, the grantee had the right of first refusal, in others the recapture could be effectuated “notwithstanding any agreement to the contrary”. Nonetheless, as intellectually stimulating as they may be, their inapplicability to any grants made over the past 60 years renders them of limited practical value at present.
US termination of transfer
However, the situation is very different in other countries. Let’s start with the United States. Already in its 1909 Act, Congress embodied an initial 28-year copyright term followed by a second 28-year renewal term – the purpose of that “reversion of renewal” was to allow authors to reclaim rights in successful works whose value they could not reasonably determine at the outset, when they initially signed away those rights. But judicial interpretations frustrated that goal of giving authors a second “bite of the apple”.
Congress therefore reacted by legislating an altogether new regime in 1976. Called “termination of transfer”, this complex scheme allows authors to “get back to where [they] once belonged” after the passage of 35 years,or in some instances 56 years – and in yet other instances, after 75 years (4.1 Economic Rights of the Copyright Owner in the United States Law and Practice chapter). This scheme reflects a “third bite at the apple” – applicable only to the rare slice of works that retain their value many decades after initial publication, it allows their authors to benefit belatedly from their original acts of genius.
The operative sentiment here is that, as sacred as freedom of contract is to the ordering of the world, there is something in life that is even more fundamental. This principle is that, after the passage of decades, justice demands that the author be the party to benefit from those few works that continue to be of enduring value. The crucial feature of this legislation is, therefore, congruent with its British forebear – the author may reclaim rights by terminating, “notwithstanding any agreement to the contrary”.
Meanwhile, the grantee (whether publisher, studio, or otherwise) may have legitimately profited during all those years from the work, without remitting anything to the author beyond the initial purchase price – which itself might have been a pittance, as neither party at the outset had a way to project future earnings. But now that the work has proven preternaturally successful, the work “wants” to revert to the creative spirit that birthed it and “get back to where [it] once belonged.”
Slamming the door
Is that device universal? Hardly so. Just take a look at 4.1 Economic Rights of the Copyright Owner in other chapters in this guide. One need simply cross the English Channel to appreciate the distinctiveness of those now-defunct British reversionary rights. “There are no specific circumstances under which French Law provides for a non-consensual termination or shortening of rights vested in the author.”
Venturing into Asia, we see more of the same: “The Japanese Copyright Act does not provide non-consensual termination of licences and/or recapture of rights.” Its neighbours embody similar laws. “There is no circumstance allowing for the non-consensual termination of grants and/or recapture of the economic rights" (Taiwan). The same effect applies throughout the region (as seen in the Malaysia chapter).
Prying the door back open
But wait. Consider a different register: “Moral rights are inalienable and cannot be transferred or inherited” (4.6 Moral Rights of the Copyright Owner in the South Korea Law and Practice chapter). It emerges that freedom of contract is not untrammelled, after all. Reverting to France, in the same section, the song remains the same: “Moral rights are inalienable; they are inherent to the person of the author.”
So there is a limit to freedom of contract after all. In all civilised countries, the market has a limit – one cannot contract to sell one’s vital bodily organs or one’s children. In Continental theory, works of authorship are equally considered one’s progeny. France has therefore long characterised the moral rights of attribution and integrity to be inalienable, imprescriptible, et perpétuel.
It therefore turns out that the (past) British and (current) US examples noted above are not conceptual outliers, after all. Moving away from moral rights, France (along with Italy, Germany, etc) recognises economic rights as time-limited (ie, not in the category of perpétuel) and as waivable (ie, not in the category of imprescriptible), plus, as transferable following the work’s creation (ie, not in the category of inalienable).
In the US, both economic rights and moral rights fall outside the paradigm of being inalienable, imprescriptible, et perpétuel. To be explicit, authors may alienate their copyrights through voluntary transfers. But the situation is not monolithic – after the passage of a set number of decades, that last valence shifts. In other words, as a matter of US law, the termination-of-transfer doctrine renders what used to be alienable into something now inalienable. Hence, an author may, at the outset, sell all right, title and interest to a novel – for USD1 or USD1 million. The publisher may freely exploit it for decades. But, when the termination window opens, the authors’ interest is resurrected – they may reclaim those very rights that they promised never to exercise again. For the statute allows authors to terminate “notwithstanding any agreement to the contrary”.
Variations on a Theme
We now see that reversion to the author exists on a widespread basis as to moral rights, and in certain select spheres as to economic rights as well. When we excavate further, we find that reversion of economic rights extends more widely than the few instances confronted thus far.
Looking again at 4.1 Economic Rights of the Copyright Owner in this guide, consider Mexico: “If the owner of the economic rights is different from the author and dies without heirs, the rights will revert to the author.” We can now appreciate that the termination-of-transfer doctrine is not simply an Anglo-American anomaly.
We see it elsewhere, too. For a more specialised application, we can go to Turkey. That law embodies twin opportunities for reversion: “[I]f the rights of the author are assigned to a third-party for an unlimited time and the general provisions on the protection period of a work are extended by the Law at a later stage, the rights arising from the work are automatically recaptured and returned to the author… once the prior protection term expires.”
It goes on: “Even if an author assigns their rights arising from a work to a third-party, the author is entitled to withdraw the assignment of rights under Article 58 of the Law, if the assigned party does not use the work and the rights of the author are damaged due to non-use.”
That last feature persists on the other side of the Aegean, as well:
“Greek copyright law provides that in all cases involving transfer of economic rights... the person who acquires these rights… is obliged to ensure that within a reasonable period of time, the work becomes accessible to the public via an appropriate form of exploitation. Therefore… the relevant agreement may be terminated, and the relevant rights may be recaptured by the initial holder.”
Leaving the birthplace of Homer, matters are to the same effect if we sail up to Viking territory in Sweden:
“[T]he author may recapture the rights, even without fault on the part of the publisher, if the work has not been published within two years (or four years if the work is a musical work)".
Continuing: “[A]n author who has granted a publisher the right to reproduce a literary or artistic work may recapture that right if the publisher is found to be at fault for not having: (i) published the work within a reasonable time, (ii) distributed the work in a reasonable way, or (iii) capitalised on market demand by issuing additional printings of the work. The effect of an author exercising their rights in this way is that the publishing agreement is terminated and the publisher may be held liable for damages.”
But there are differences, too. Unlike the British and US examples noted above, under Swedish law, “these recapture provisions only apply to the extent there is no other agreement to the contrary”.
As the Year of the Pandemic recedes into the rear-view mirror, it is time to join hands in the hope that we will soon collectively "get back to where [we] once belonged". Let it be. In the meanwhile, my goal here has been to offer some momentary edification, illuminating one of the backchannels of copyright doctrine and its varying implementation in jurisdictions across the world. Having completed my second year as Editor of this Chambers Guide, I'd like to say thank you on behalf of the group and ourselves and I hope we've passed the audition.