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mi_guidaIP (intellectual property) is a wonderful subject to study. The articles with impenetrable economic theory littering their pages aside, other academics fill their articles with quotations from Yeats and references to Les Misérables.
What I'm actually studying at the moment is copyright, which is in my opinion the most interesting area of the subject. More specifically, I'm looking into the question of the duration of copyright protection.
Some of you may know that, thanks to EC harmonisation, the period of protection across Europe is now the life of the author/creator plus 70 years[1]. The argument for this is that this assures the copyright for the life of the author plus two generations of their descendants, with the notion that, as with any kind of property, they would wish the benefits of their intellectual property work to pass on to subsequent generations. This has not always been the case, however. For a few years, between 1769[2] and 1774[3], England and Wales had a common law copyright of perpetual duration.
It's now generally accepted that perpetual duration of copyright is contrary to various arguments involving the public interest. The standard line is that it is beneficial to the public to have access to works, for the purposes of education, information and cultural improvement. This is why copyright is subject to some restrictions while it is in force, and it's why copyright is limited in duration.
However, various people have put forward arguments criticising the fact that we treat intellectual property differently to other kinds of property. One justification is that it's unfair to let families of artists sit on a potential goldmine that they can continue to exploit. On the one hand, such a situation arises incredibly rarely, in relation to the vast number of works created that never generate much income at all - are we then just assuming that artists only work for money[4]? Clearly they don't - there are many reasons - but in this case, copyright is not necessarily the best protection.[5] The other criticism of this position is that for the types of tangible property that do retain or increase in value, we have no such restriction.
The academics aren't proposing that we start to put a limit on the length of time a family can own land, but they are pointing out that we treat intellectual property differently to other types of property, seemingly on the basis of a feeling that intellectual property is by its nature "different" to other kinds of property. Here, we're once again back to the public interest argument.
However, one article in particular - "Of Bread and Roses and Copyright", LJ Lacey[7] - has got me thinking. She puts forward the argument that, as the test of a work of art is its endurance, and since the public interest in great works of art is larger than in others, all great works of art must eventually belong to the "ages", and not to their original creator. Intellectual property differs from other types of property in this: as the public interest in areas of land of unspoilt natural beauty increases (as we build on them, etc), should we then have a limitation on the duration of the property right in that land?
It goes against all logic of the certainty and stability of law to suggest such a thing should be introduced, but when I read this, I had a sudden thought. Although there is no law to enact this principle, what about the National Trust? The National Trust functions on the basis that, when there is no longer such a specific private need for, e.g. a family manor house, and the public interest in seeing such building preserved with their original fittings and fixtures for our education and the enrichment of our historical heritage, the owners of the house may choose to give up their property rights over it.
In a similar vein, in France, where the moral rights of creators are perpetual, companies can be set up to manage these rights after the creator's death. This ensures that there is a durable identifiable legal personality to defend the rights (after a few generations, dozens of people hold a share of their ancestor's moral rights - or even not their ancestor, as they can be inherited by people outside the family[8]). Arguably, although these moral rights are personal to the creator (which is why they cannot be bought or sold), such a set up would allow the protection of the work's integrity, which might also be in the public interest[9]: a painting may no longer be subject to copyright, but does that mean that whoever happens to own it should be allowed to cut the canvas up into pieces and sell them on?
The crux of the problem, then, is this: are there any valid justifications for perpetual copyright? If not, then what should the limitation on the duration of copyright be?
*******************
[1] The protection for sound recordings is 50 years from the date of the recording being made: this is why in recent years there has been some fuss from people like Cliff Richard, who have songs played still that will soon have been recorded more than 50 years ago, and so they will lose their royalties from them. This is possibly a discussion for another time...
[2] Millar v Taylor, where the judges held that there was a perpetual common law copyright, and so despite the provisions of the Statute of Anne 1710, the publishers could retain their sole right to publish the work and prevent other publishers from so doing.
[3] Donaldson v Beckett, where the House of Lords overturned their previous decision and held that, as copyright came from statute, it could be limited by statute.
[4] Dr Samuel Johnson: "[n]o man but a blockhead ever wrote except for money"
[5] Arguably the best protection here are the moral rights - they have only a limited recognition in Britain, under the Berne Convention, and are barely acknowledged at all in America, but in France they include the right to publish a work, the right to display it, the right to be acknowledged as the creator, the right to the integrity of the work (a right against it being destroyed or damaged, or (in the case of e.g. purpose designed statues, or foyer art) even moved from its original place), and the right to withdraw the work. These rights are perpetual[6], and cannot be transferred to anyone else, meaning they pass down the family line in perpetuity.
[6] This comes from the idea that works are linked to the personality of the creator, and so can never be separated from them, even if they are sold on several times (in the case of works of fine art).
[7] [1989] Duke Law Journal 1532, if you're really interested.
[8] In some cases this can actually be a good thing: an author could nominate a close friend to guard his interests, rather than having them pass to his profligate wastrel of a son; alternatively, they may be passed to a spouse, and then on to their new spouse, and then on to that new spouse's chauffeur (this did actually happen). On the other hand, does it matter who has the moral rights, as long as they'll defend them? Arguably, when the bond of personality is broken with the creator's death, the subsequent owners of the works may be best placed to defend the moral rights.
[9] This is actually the way things stand with California's moral rights: the doctrine there is explicitly designed to preserve original paintings and sculptures as well as benefit artists.
What I'm actually studying at the moment is copyright, which is in my opinion the most interesting area of the subject. More specifically, I'm looking into the question of the duration of copyright protection.
Some of you may know that, thanks to EC harmonisation, the period of protection across Europe is now the life of the author/creator plus 70 years[1]. The argument for this is that this assures the copyright for the life of the author plus two generations of their descendants, with the notion that, as with any kind of property, they would wish the benefits of their intellectual property work to pass on to subsequent generations. This has not always been the case, however. For a few years, between 1769[2] and 1774[3], England and Wales had a common law copyright of perpetual duration.
It's now generally accepted that perpetual duration of copyright is contrary to various arguments involving the public interest. The standard line is that it is beneficial to the public to have access to works, for the purposes of education, information and cultural improvement. This is why copyright is subject to some restrictions while it is in force, and it's why copyright is limited in duration.
However, various people have put forward arguments criticising the fact that we treat intellectual property differently to other kinds of property. One justification is that it's unfair to let families of artists sit on a potential goldmine that they can continue to exploit. On the one hand, such a situation arises incredibly rarely, in relation to the vast number of works created that never generate much income at all - are we then just assuming that artists only work for money[4]? Clearly they don't - there are many reasons - but in this case, copyright is not necessarily the best protection.[5] The other criticism of this position is that for the types of tangible property that do retain or increase in value, we have no such restriction.
The academics aren't proposing that we start to put a limit on the length of time a family can own land, but they are pointing out that we treat intellectual property differently to other types of property, seemingly on the basis of a feeling that intellectual property is by its nature "different" to other kinds of property. Here, we're once again back to the public interest argument.
However, one article in particular - "Of Bread and Roses and Copyright", LJ Lacey[7] - has got me thinking. She puts forward the argument that, as the test of a work of art is its endurance, and since the public interest in great works of art is larger than in others, all great works of art must eventually belong to the "ages", and not to their original creator. Intellectual property differs from other types of property in this: as the public interest in areas of land of unspoilt natural beauty increases (as we build on them, etc), should we then have a limitation on the duration of the property right in that land?
It goes against all logic of the certainty and stability of law to suggest such a thing should be introduced, but when I read this, I had a sudden thought. Although there is no law to enact this principle, what about the National Trust? The National Trust functions on the basis that, when there is no longer such a specific private need for, e.g. a family manor house, and the public interest in seeing such building preserved with their original fittings and fixtures for our education and the enrichment of our historical heritage, the owners of the house may choose to give up their property rights over it.
In a similar vein, in France, where the moral rights of creators are perpetual, companies can be set up to manage these rights after the creator's death. This ensures that there is a durable identifiable legal personality to defend the rights (after a few generations, dozens of people hold a share of their ancestor's moral rights - or even not their ancestor, as they can be inherited by people outside the family[8]). Arguably, although these moral rights are personal to the creator (which is why they cannot be bought or sold), such a set up would allow the protection of the work's integrity, which might also be in the public interest[9]: a painting may no longer be subject to copyright, but does that mean that whoever happens to own it should be allowed to cut the canvas up into pieces and sell them on?
The crux of the problem, then, is this: are there any valid justifications for perpetual copyright? If not, then what should the limitation on the duration of copyright be?
[1] The protection for sound recordings is 50 years from the date of the recording being made: this is why in recent years there has been some fuss from people like Cliff Richard, who have songs played still that will soon have been recorded more than 50 years ago, and so they will lose their royalties from them. This is possibly a discussion for another time...
[2] Millar v Taylor, where the judges held that there was a perpetual common law copyright, and so despite the provisions of the Statute of Anne 1710, the publishers could retain their sole right to publish the work and prevent other publishers from so doing.
[3] Donaldson v Beckett, where the House of Lords overturned their previous decision and held that, as copyright came from statute, it could be limited by statute.
[4] Dr Samuel Johnson: "[n]o man but a blockhead ever wrote except for money"
[5] Arguably the best protection here are the moral rights - they have only a limited recognition in Britain, under the Berne Convention, and are barely acknowledged at all in America, but in France they include the right to publish a work, the right to display it, the right to be acknowledged as the creator, the right to the integrity of the work (a right against it being destroyed or damaged, or (in the case of e.g. purpose designed statues, or foyer art) even moved from its original place), and the right to withdraw the work. These rights are perpetual[6], and cannot be transferred to anyone else, meaning they pass down the family line in perpetuity.
[6] This comes from the idea that works are linked to the personality of the creator, and so can never be separated from them, even if they are sold on several times (in the case of works of fine art).
[7] [1989] Duke Law Journal 1532, if you're really interested.
[8] In some cases this can actually be a good thing: an author could nominate a close friend to guard his interests, rather than having them pass to his profligate wastrel of a son; alternatively, they may be passed to a spouse, and then on to their new spouse, and then on to that new spouse's chauffeur (this did actually happen). On the other hand, does it matter who has the moral rights, as long as they'll defend them? Arguably, when the bond of personality is broken with the creator's death, the subsequent owners of the works may be best placed to defend the moral rights.
[9] This is actually the way things stand with California's moral rights: the doctrine there is explicitly designed to preserve original paintings and sculptures as well as benefit artists.
