24 April 2020CopyrightRory O'Neill

From here to eternity—a copyright conundrum

Copyright is by far the most durable of all IP rights—the life of the artist, plus at least 50 years, according to the 1886 Berne Convention. Some countries, including the US, UK, and France, have extended this to 70 years after an artist’s death.

But UNESCO ambassador Jean-Michel Jarre has suggested a more radical reimagination of copyright—what if it could last forever? Jarre, known more for pioneering efforts in electronic music than in IP law, laid out his proposal for “eternal copyright” at the virtual launch of  UNESCO’s ResiliArt project.

ResiliArt is a UNESCO-sponsored initiative to help artists whose livelihoods have been hit by the COVID-19 pandemic. Jarre foresees a role for the copyright system to this end.

“I mean by this that after a certain period of time, the rights of music, of movies, of everything, would go to a global fund to help artists, especially in emerging countries,” he explained.

On Twitter,  where UNESCO shared Jarre’s suggestion and asked for the public’s thoughts, the concept was not warmly received by IP lawyers, at least based on a glance at the comments beneath.

Speaking to WIPR, Miryam Boston, senior associate at Fieldfisher in London, says that the idea falls down firstly on a practical level.

“How would this fund decide who to give the money to?” she asks. “Would the beneficiaries be classical arts, which already have funding initiatives, or other art forms?”

But more interesting is the way in which Jarre’s proposal reimagines what copyright is supposed to be for.

It’s built around two main elements—extending the shelf life of copyright to eternity, and also, in theory, collectivising it for a social or charitable purpose. For that second goal, in Boston’s view, IP is not the appropriate mechanism to use.

“Copyright involves incentivising and rewarding the creativity of the particular artist and in respect of a particular work,” Boston says, adding: “It’s there to support and encourage individuals in their endeavors, not for restricting a copyright work created by one artist to fund support another, or the arts more generally.”

Patchen Haggerty, partner at Perkins Coie, points out the idea would be prohibited in the US under the constitution.

“The power for authors to secure, for a limited time, the exclusive right to their works is the basis for US copyright law,” she says.

In her view, the idea would undermine the fundamental purpose of copyright, at least as it is envisioned in the US: the granting of a limited monopoly, in support of the artist, in exchange for a donation to the public domain at the end of the term of protection.

“Perpetual copyright terms as proposed would stifle creativity and regress the progress of the arts by cutting off public access to creative works upon expiration of the copyright term,” she argues.

This seems to be the most compelling objection to Jarre’s idea. Not only is it difficult to implement, and not only is it a major departure from copyright law as we’ve ever known it, but it’s the end of the public domain.

This was the main theme expressed in replies to UNESCO’s tweet of the proposal. One user asked “why a global crisis has to be used as an excuse to invent a new layer to stifle creativity”.

People want to support artists, but not by locking creative works off from public access and use.

As  Micaela Mantegna, legal commentator and professor at the University of San Andrés in Buenos Aires, said of ‘eternal copyright’, it’s “privatising more and more spaces, leaving less room to be creative without infringement”.

And so what was, on the face of it, supposed to be an idea about supporting struggling artists, ends up looking more like a power grab.

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