Financial Daily from THE HINDU group of publications
Wednesday, Dec 04, 2002
The life and death of a copyright
N. A. K. Sarma
THE explosion of global communications and the great strides in technology have pushed intellectual property (IP or IPR) to the forefront. Exploitation of IP has come to be recognised as a means of revenue generation. One of the oldest components of IP is copyright.
Copyright denotes the exclusive right, bestowed by law for a term, to the author or composer of a work, to reproduce, print, perform or otherwise communicate to the public and sell copies. The entertainment explosion widened the ambit to computer software, satellite transmission and the Internet. Copyright law affects trade and industry as a whole. Copyright exists in the manner in which a trademark is scripted; it exists in trade literature or copywriting; it also exists in original industrial drawings.
One who creates a work by one's own efforts ought to have some right over what is created. In the case of tangible property, the owner's right is absolute and perpetual. As regards intangible property, the author or composer does not create it for his exclusive perpetual enjoyment. The creator derives great satisfaction but the enjoyment remains incomplete unless it is shared and appreciated by the public at large. Rarely has the creator the ability or wherewithal to place the work before the public. Publishers, producers and modern day promoters of satellite television channels fill the gap.
True, a writer or artist would be less inclined to create a literary or other work if anyone could instantly access it and use it in any manner. Free exploitation may even lead to the work being hacked and mutilated.
On the other hand, too much protection and for too long a term, would have the effect of making the work inaccessible to the public for whose enjoyment the work has been created. The seemingly conflicting interests of the `creator' and the `public' can be balanced only by limiting the exclusive right of the creator to a reasonable term.
The greatest enjoyment for an author comes from the appreciation that the work receives from the public; but creativity rarely co-exists with the ability to commercialise. Unless published, the creative work remains a suppressed treasure. This predicament is common to all forms of copyright. All creators are, hence, compelled to assign or licence the copyright to a publisher or producer or other marketing intermediary. Prescribing a term for copyright was a compromise to meet the necessity for protection to the three players the creator, the publisher and the public at large. Bringing out reprint or fresh version does not monetarily benefit the creator; it enriches the publishers and media companies. Competition, which brings down prices, does not operate because of the extended term of copyright and the right to publish often remains vested with a single publisher.
The life of a trademark is nearly perpetual, provided the registration is renewed periodically and the mark remained in use. Patents and designs have relatively lesser term, including the one extension allowed for designs. Understandably, the term copyright has always attracted great attention because the publishers, film producers and the like have been greater beneficiaries than the creator of the work.
In England, initially, the copyright lasted for 14 years from the first publication and if the author was still living at the expiry, the right was `returned' to him for another 14 years. In 1815, the term of the statutory right in a copyright in published books was extended to 28 years or the author's life, whichever is longer. Successful lobbying resulted in the term being further extended to 42 years, or the author's life plus seven years, whichever was longer.
In 1911, the term was increased to author's life plus 50 years, to bring it in conformity with the Berne Convention. Under the Copyright, Designs and Patent Act of 1988 (the UK), as amended by the Duration Regulations of 1995, the term was extended to the author's life plus 70 years. The Duration Regulations of 1995 made the extension somewhat retrospective. As a result even some expired copyright came to be revived.
The US Constitution empowered the Congress to legislate so as "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". In the US too, separate enactments have gradually lengthened the term of copyright from time to time. In the past 40 years, there have been 11 extensions.
The latest is the Sonny Bono Copyright Term Extension Act of 1998, which extended the term of Copyright from 50 to 70 years after the author's death and for works produced for hire and owned by firms, from 75 to 95 years after publication.
In India, the Copyright Act, 1957 prescribed a term of author's life plus 50 years. Effective from December 28, 1991, the term was increased to the author's life plus 60 years. It is common knowledge that this increase was triggered because the literary works of Nobel Laureate, Rabindranath Tagore, was otherwise to enter the public domain on January 1, 1992. The Sonny Bono Extension Act in US is also known to be the result of lobbying in support of the widow of a Congressman and singer, Sonny Bono, who clamoured that copyright should be forever. Without much debate or discussion, the US Senate extended the term from 50 to 60 years after the death of the author. Except for the long term of copyright, many masterpiece literary and musical works would have been legally secured, heard and enjoyed by millions of people all over the world, at a nominal cost. The exclusive nature of copyright has merely led to a monopoly situation benefiting the wrong party. Which creator is anxious that till expiry of 60 years after his death the public should be denied access to his works except at a heavy price. By that time, the creator is hardly remembered!
Enter, Mr Lawrence Lessig and things may change. Eric Eldred, a retired computing executive who published copyright expired works on the Internet, is a proforma plaintiff in Eldred vs. Ashcroft. The moving force has been Mr Lessig, formerly of Harvard and now professor of copyright law at Stanford University. He has challenged the constitutionality of the Sonny Bono Copyright Term Extension Act on the ground that it violates the balance between the rights and interests of copyright holders and those of the public.
The argument runs like this. The US Constitution grants power to the Congress to legislate to "promote the progress of science and useful arts'', but restricts the power for `limited times'. Granting extension in the term of Copyright on 11 occasions during the last 40 years is, therefore, beyond the scope of the power given to the Congress under the US Constitution. The expression `limited times', Mr Lessig has argued, cannot mean perpetuity in instalments. Extension of the intellectual property rights of dead authors and creators cannot act as an incentive to present day creativity. Mr Lessig lost the battle in the first two rounds and to the surprise of most legal experts, the US Supreme Court agreed to hear the case. The hearing concluded in mid-October and the decision of the nine-judge bench is expected early next year.
In all likelihood, the appeal will fail and the court may uphold the legislative competence of the Congress, without perhaps going into the issue if periodical extensions violated the spirit of the power under the Constitution to grant patents and copyrights for `limited times'. In India, Mr Lessig would have had little chance of success as the legislative power of Parliament under entry 49 in the Union List is vast. But Mr Lessig has succeeded in focussing attention on a counter-productive legislative trend. The entertainment industry has been put on notice and consumer interest has moved a notch further.
Lobbying by interested groups for legislative largesse is not unknown. But governments may not be willing in the years to come to liberally oblige the publishing and media barons by granting repetitive extensions in the term of statutory rights. Copies of most creative works, be it literary, dramatic, musical or technological, are priced beyond reach of most. The creators are helpless. Works of eminent `creators' would have been appreciated and enjoyed by many more if long post-death term did not exist for the copyright. In any case, where is the need for such long a period of protection for many forms of copyright technological and computer-related works, where obsolescence is rapid.
There is yet another dimension to the issue. Shrinking of the globe has increased world trade and led to a demand for commerce reciprocity. IP protection is a feature under the WTO which administers the TRIPS. Nations are anxious to secure maximum protection to the works published in their country vis-à-vis the term in other countries. There is a wrong notion that a longer term for copyright is a sign of national pride. So nation States and Unions such as the EU succumb to lobby pressure. Most creators live a modest life and affluence eludes them till the end. The post-death term of copyright is just an epitaph that benefits the engraver. A bypass would enable the creators to reach across to the public effortlessly. Will publishers and media barons allow it? If they do not, the `pirates' would celebrate victory.
(The author is a Chennai-based advocate and can be reached at firstname.lastname@example.org)
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