Zombie and Once-Dead Works:
After the E.C. Term Directive
Published in the Entertainment and Sports Lawyer, vol. 18 (no. 2) (2000), p. 7.
Suppose that you have a work authored by a national from one country. Will it be protected by copyright in other countries? As works get older, this question becomes more difficult to answer. A related pair of issues complicate analysis:(1) retroactivity and the rule of the shorter term.
This article will consider these issues from the point of view of the European market, where terms of rights have been made longer. Clients with interests in works or recordings with longer rights may be able to make more money in European markets. By contrast, if clients want to use an old work in these markets, for example, an old novel as the basis for a new film, they had better double-check to see that the work has not come out of public-domain graves in the European Community.(2)
Why the longer terms? Because of an E.C. directive. Such a directive is an order requiring E.C. countries to bring their laws into compliance with its provisions. In the fall of 1993, the E.C. adopted the Term Directive.(3) Against the deadline of mid-1995, E.C. countries enacted legislation to implement the Term Directive. Article 1 of this Term Directive required E.C. countries to extend the normal copyright term of life plus 50 years to life plus 70 years; article 3 also required that related or neighboring rights normally last 50 years. What is the difference between copyright and neighboring rights? In the European view, copyright only protects creative works; neighboring rights protect other media productions such as performances, recordings, and broadcasts, even without creative input or an underlying protected work. For example, they protect a performance and recording of, say, a Mozart symphony or a blues tune in the public domain.
Other provisions in the Term Directive govern special terms, dates from which terms are counted, and consequences for pre-existing subject matters. It is this last set of provisions, the so-called transitional provisions, that prompt the following analysis, and they have had extraordinary consequences. As of the deadline of mid-1995, article 10 of the Term Directive was retroactively to bring protection to many works and media productions that either apparently or effectively had fallen into the public domain. Why apparently or effectively? It depends on whether the works or the media productions were either zombies or truly dead in any given country. It is critical to analyze the life-or-death status of a work or other media production territory by territory. It is also useful to keep basic rules of international copyright in mind.
article will consider three examples. First, the opera Tosca by the
Italian composer Puccini was a zombie work in
A Zombie Work: Tosca
half of this article will be spent on Tosca, the first example. It is
helpful to understand zombie works before considering how the Term Directive
brought truly dead works and other media productions back to life in E.C.
countries. Tosca will illustrate two basic rules: the default rule of
international copyright, namely no retroactivity at all; and the
had been first published in sheet music at the start of 1900. But the evidence
showed that such publication took place in
Italian music publisher, along with other claimants to Tosca, sued the
Bavarian State Opera in
Tosca claimants invoked section 121(1) in the 1965 German Copyright Act,
which protects all works published within 30 days in
alternative ground for protecting Tosca seemed to lie in the Berne
Convention. Let us digress here on
under the Berne Convention, the
we have to refer to the Phil Collins case. Phil Collins had given a
performance in the
the E.C. principle of nondiscrimination requires full national treatment, it
precludes applying the rule of the shorter term, which effectively
discriminates on the basis of a claimant's home law. Now both
since the Phil Collins case came down, the German Federal Court of
Justice has noted that "for decades, nobody ever thought that it was
possible to rely on" this principle, requiring full national treatment for
E.C. authors.(13) The same Court has now raised the
question whether damages for infringing such "living-dead" copyrights
might not be limited to periods after the time in 1992 when it became arguable
that these rights could be "unearthed."(14)
A Truly Dead Work: Broadway Boogie-Woogie
The Phil Collins judgment is critical for understanding how many works and other media productions have come out of their public-domain graves throughout the E.C. Article 10(2) of the E.C. Term Directive provides for this retroactivity, as follows: "The terms of protection provided for in this Directive shall apply to all works and subject matter which are protected in at least one Member State" on July 1, 1995, "pursuant to national provisions on copyright or related rights."(15)
hypothetically, the painting Broadway Boogie-Woogie. The Dutch artist
Mondrian completed it in the
To avoid confusion, we have to remember that a work will have its own separate public-domain grave in each country, whether truly dead or buried alive in that grave. In that perspective, reconsider our zombie and truly dead works:
2. Shift now
to Broadway Boogie-Woogie: In the Netherlands, it fell out of copyright,
truly dead in a Dutch grave, 50 years after Mondrian's death in 1944, thus at
the end of 1994. However, in
complete analysis, go back to Tosca: Imagine that Puccini, the author of
Tosca, died, not in 1924, but 1934, so that the
that it makes no difference at all whether or not Broadway Boogie-Woogie
was first published in the form of reproductions in the
works originating in the
Non-E.C. Productions: My Way
about non-E.C. works? To start, they are not necessarily going to benefit from
the E.C. term extensions. Article 7 of the E.C. Term Directive mandates E.C.
countries to apply the rule of the shorter term. However, consistent with Phil
Collins, they may not apply the rule to works or other media productions
made by E.C. nationals. Nor should they apply the rule to a work with an E.C.
country as its country of origin in the
claims can be made to protect many
now to sound recordings that, in most E.C. countries, are protected by
neighboring rights. Consider the compilation My Way, The Best of Frank
Sinatra, consisting of recordings made and published in the
Sinatra decision goes even further. While the German term of rights in
creative works was one of the longest in the E.C. before the Term Directive,
generally life plus 70 years, the term of rights in sound recordings was
longest in the
remains to be seen whether, and how, the German Federal Court of Justice might
review this Sinatra decision. However, since the decision does not
regard copyright, but only one type of neighboring right, the appeal might not
settle all outstanding issues regarding the interplay between treaty
obligations and implementing legislation concerning terms of German rights in
non-E.C. works and other media productions.(22)
Caveats and Conclusion
In the case of an older work or media production in the E.C., one has to look to the longest applicable term of rights in any one E.C. country prior to the deadline of mid-1995. If that term was still running at that time, then that work or media production qualifies for any longer term of protection instituted under the Term Directive elsewhere in the E.C., assuming the requisite E.C. claimant. We have mentioned both the prior German term of copyright, namely life plus 70 years, and the prior British term of rights in sound recordings, namely 50 years from production or release. But bear in mind the following caveats, which are not exhaustive:
of E.C. adherence. Consider
extensions of term. Not all implementing legislation mentions the wartime
extensions of term. The Italian legislation abrogated the extension that had
added six years to the term of rights in works, like Tosca, published
before the end of World War II, but it maintained the extension accorded to
foreign works under the Treaty of Peace that
3. Reliance interests. Article 10(3) of the E.C. Term Directive states that the revival of rights in any work or other media production shall be "without prejudice to any acts of exploitation performed" before July 1, 1995, and leaves it up to each E.C. country to adopt provisions to protect reliance interests, "in particular acquired rights of third parties." These provisions indeed vary from country to country: different laws specify different cut-off dates for assertable reliance interests and, more rarely, concern chain of title. In the Butterfly case, the E.C. Court of Justice confirmed that one E.C. country properly exercised its legislative discretion in devising its scheme to account for reliance interests.(25)
Do not assume that an older work or media production, once buried in the public domain of an E.C. country, remains dead once and for all. Keep a lookout for works with E.C. authors, bearing in mind that the national law of the protecting country may well define "author" here. Look out, as well, for performances or sound recordings or other media productions made by E.C. nationals. Otherwise, look for works or other media productions, with regard to which there are treaty or legislative grounds for claiming retroactive protection and for avoiding the application of rule of the shorter term. Ask, then, whether the work or media production was protected in any one E.C. country in mid-1995: in that event, in an appropriate case, it might have arisen from its public-domain grave at that time.
1. For a framework of analysis, see Paul Edward Geller, International Copyright: The Introduction §§ 3-5, in 1 International Copyright Law and Practice (updated annually) [hereinafter cited as Internat'l Copr. Law & Practice, but in its 1999 update, just before this article was published].
2. For the sake
of simplicity, this article will speak of the European Community [hereinafter
the E.C.], not of the European Union. Note, too, that many conclusions
applicable throughout the E.C. might apply as well in the European Economic
Area [E.E.A.], which includes all the E.C. countries plus
Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as
last revised at
11. See Berne Convention, supra note 7, arts. 5(4)(a) and 7(8). On the applicable definitions of "first publication" and "country of origin" and the application of the rule of the shorter term, respectively, see Geller, International Copyright, supra note 1, §§ 4[b][ii], 4[b][ii], and 5[a].
13. The Rolling Stones decision, BGH (Federal Court of Justice), April 21, 1994, 1995 GRUR Int. 65, partially translated into English in 26 Int'l Rev. Indus. Prop. & Copyright L. [I.I.C.] 730 (1995) and, as quoted here, in 165 Rev. Int'le Droit d'Auteur 240, 280 (1995), with a note by A. Kéréver.
17. The Keaton decision, BGH (Federal Court
of Justice), Jan. 27, 1978, 1979 GRUR Int. 50, partially translated into
English in 10 I.I.C. 358 (1979). See Wilhelm Nordemann, The Term
of Protection for Works of U.S.-American authors in
21. See also the Maria Callas case (Diva S.r.l. c. Myto Records S.a.s), Tribunal Milan, April 20, 1999, 2000 Diritto di Autore 141 (protecting, against unauthorized reproduction, selected passages of live performances by Callas from operas, including Lucia di Lamermoor, Norma, and Traviata, recorded from 1952 through 1956).