To provide some context to discussions on the term of protection for copyright and related rights, the following note sumarizes on the basic provisions in various multilateral copyright and related rights treaties, on the topics of minimum terms and formalities. This does not include provisions in bilateral and regional trade agreements, such as NAFTA, the US/AU FTA, or the several EU FTA and other agreements.
We consider the requirements in the TRIPS, which include references to Berne and Rome, as the most binding international instruments, particularly for the US and the EU. Countries that have signed FTAs with IP chapters will also have dispute resolution issues to worry about.
SUMMARY OF BERNE CONVENTION OBLIGATIONS
Works Covered: The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
Formalities: In Article 5: Rights "not subject to any formality." This is a barrier to limiting copyright to only works that are registered. (Article 5)
Minimum Term: Life plus 50 for most works, with some exceptions. For cinematographic works, 50 years after made available to the public.* For "anonymous or pseudonymous works," 50 years after the work has been lawfully made available to the public. For photographs and works of applied art, "25 years from the making of such a work." (Article 7).
SUMMARY OF ROME CONVENTION OBLIGATIONS
Works covered: The protection of performers, producers of phonograms and broadcasting organizations.
Minimum term: 20 years, computed from the end of the year in which:
(a) the fixation was made–for phonograms and for performances incorporated therein;
(b) the performance took place–for performances not incorporated in phonograms;
(c) the broadcast took place–for broadcasts.
Formalities: For related rights protected under the Rome Convention, registration or other formalities apparently *may* be required. This was called to my attention by the European Broadcasters.
With regard to phonograms, the requirement for formalities shall be considered as fulfilled if all the copies in commerce of the published phonogram or their containers bear a notice consisting of the symbol (P), accompanied by the year date of the first publication, placed in such a manner as to give reasonable notice of claim of protection; and if the copies or their containers do not identify the producer or the licensee of the producer (by carrying his name, trade mark or other appropriate designation), the notice shall also include the name of the owner of the rights of the producer; and, furthermore, if the copies or their containers do not identify the principal performers, the notice shall also include the name of the person who, in the country in which the fixation was effected, owns the rights of such performers. (Article 11).
Minimum term: For works protected by copyright, whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making. (Article 12)
For the releated rights of performers and producers of phonograms, 50 years from fixation or performance. (Article 14)
For Broadcasting Organizations, 20 years from the end of the calendar year in which the broadcast took place. (Article 14)
Minimum Term: countries can no longer limit protection of photographs to 25 years. (Article 9)
Formalities: In footnote 11 to Article 12, "It is further understood that Contracting Parties will not rely on this Article to devise or implement rights management systems that would have the effect of imposing formalities which are not permitted under the Berne Convention or this Treaty, prohibiting the free movement of goods or impeding the enjoyment of rights under this Treaty."
Minimum Term: for performers and producers of phonograms, 50 years, computed from the end of the year in which the phonogram was published, or failing such publication within 50 years from fixation of the phonogram, 50 years from the end of the year in which the fixation was made. (Article 17)
Formalities: The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality. (Article 20).
* Or 50 years from the making, if not made available to the public within 50 years.
For a concise summary of the TRIPS requirements, see this blog entry.