[A2k] text of TACD copyright resolution

[James Love]

I have formated the TACD resolution in html and text formats.

http://www.keionline.org/blogs/2009/07/01/tacd-copyright-term/

DOC No. IP 10-09 DATE ISSUED: 1st July 2009

Resolution on the Terms of Protection for Copyright and Related Rights,
and Measures to Expand Access to Works not Exploited by Copyright Owners

Introduction

The members of the Trans Atlantic Consumer Dialogue (TACD) agree that
policy makers should reject excessive terms of protection for copyright
and related rights, and consider measures to mitigate or overcome harm
from long terms of protection. The recommendations below concern the
term of protection, as well as the use of systems of registration to
limit the works subject to protection, and the role of exceptions to
copyright and related rights to expand access to works that are not
being actively exploited by copyright owners. A series of
recommendations are presented, followed by an elaboration of the context
and rationale for the recommendations:

RECOMMENDATIONS

   1. The EU and the US should implement copyright and related rights
with terms for protection that do not exceed that required by the WTO
TRIPS Agreement.

   2. In cases where the EU and the US consider terms of protection that
exceed WTO TRIPS requirements, the evaluation must start with a
thorough, objective, and peer reviewed assessment of the costs and
benefits to society as a whole.

   3. For countries that have previously extended terms of protection
for works protected by Article 9-13 of the TRIPS agreement beyond the
terms required by the TRIPS agreement, such protection should be
converted to a supplementary system of protection. As a supplementary
regime the extended term would not be constrained by the Berne or Rome
Convention requirements concerning registration obligations or Berne,
Rome or TRIPS three step tests. The features of the extended term will
of course be constrained by domestic law, and possibly other
obligations. In implementing extended terms as a supplementary
protection regime, TACD recommends the following features be
incorporated, to the extent that such features are consistent with
domestic legal traditions and can be resolved through negotiations
regarding non-TRIPS trade agreements, including but not limited to
Europe Union Directives or bilateral or regional Free Trade Agreements.

      Mandatory Features of the Supplementary Regime

      (a) The regime for the extended term shall include limitations and
exceptions to rights that are at least as supportive of access to
knowledge as exist for copyrighted and related rights works;

      (b) The regime for the extended term shall require that protection
is based upon the registration of the work and the inclusion of a notice
of an extended term of =0Cprotection, identifying the right owner and the
date the work will enter the public domain.

      (c) Works must be subject to an obligation for deposit in an
archive in a format that will ensure public access after the expiration
of the extended term of protection.

      (d) The extended term of protection should have provisions
allowing states to introduce appropriate non-voluntary remuneration
schemes that advance innovative uses of knowledge goods in other areas.

      (e) The regime for the extended term shall be subject to
additional public interest measures that promote access to knowledge,
including additional limitations and exceptions to rights, obligations
to support public knowledge goods, or include special provisions to
protect the rights of authors or performers.

      Optional Features of a Supplementary Regime

      (f) Among the specific measures for obligations, limitations or
exceptions for protection of works in the extended term, or changes in
modalities, taking into account also domestic legal constraints, TACD
recommends consideration be given to the following optional features for
the supplementary regime:
         i. Owners must actively exploit works.
         ii. Where works were created by individuals, the right to use
the extended protection should revert back to the creative persons who
authored or performed the work, or their heirs.
         iii. The extended term of protection should not apply
retroactively, but only progressively for works whose term of protection
has not expired.
         iv. The extended term of protection should not be granted when
the creator of a work is dead.
         v. The extended term of protection would not apply for any work
for which the individual authors have alienated all economic rights,
such as works created as a work-for hire or as a corporate authorship,
in countries where such systems exist.
         vi. The works subject to the extended term of protection that
are commercially exploited shall be subject to requirements that rights
holders contribute money to funds created to benefit authors or
performers, support live performances of works, to acquire works or
licenses to use works that can be dedicated to the public domain, or for
other public interest purposes.

   4. The EU and the US should undertake a study to examine the extent
and ways that systems of copyright and related rights registration can
be implemented within the current framework of WTO TRIPS obligations,
and the benefits of doing so, in terms of expanding access to works not
exploited by copyright owners.

   5. For protected works that are not commercially exploited, the EU
and the US should evaluate mechanisms to allow use without the
permission of the right owners, =0Cincluding uses that would be
appropriate as an exception to exclusive rights under Articles 13, 14 or
40 of the TRIPS Agreement, or under the considerable flexibilities of
TRIPS Articles 44.1 and 44.2, to limit remedies for unauthorized uses of
works.

   6. The EU and the US should not adopt provisions in ACTA or other
trade agreements that reduce the flexibility of governments to permit
uses of works without authorization from right owners. In this regard,
in particular:

      (a) Provisions regarding the granting of injunctions for
unauthorized uses should not undermine the current flexibilities in
Article 44 of the TRIPS Agreement,

      (b) Provisions regarding damages should not undermine alternative
systems of remuneration for copyright owners or measures to expand
access to orphan works.
   7. These recommendations are without prejudice to questions of moral
rights.

BACKGROUND DOCUMENT

The following provides background and context of the TACD
recommendations on the term of protection for copyright and related
rights, and measures related to access to works not exploited by right
owners.

Excessive Terms of Protection are Harmful

1. Excessive terms of protection for copyright and related rights shrink
the public domain, threaten consumers=E2=80=99 access to knowledge and hind=
er
production and innovation by creative communities.

2. TACD notes that both the EU and the US have extended the term of
copyright beyond that required by the WTO TRIPS Agreement or the 1996
WIPO Copyright Treaty, and that some members of the EU and the US have
extended copyright or related rights terms beyond that required by the
1996 WIPO Performances and Phonograms Treaty. Moreover, there are
proposals in the EU to further extend the terms of protection for sound
recordings.

3. There is no economic justification for a term of protection that
extends beyond the time necessary to provide incentives to create and
distribute works. There are strong economic justifications to eliminate
restrictions on uses of works when the owner ceases to exploit them.

4. Longer terms for protection are not self-evidently better protection,
particularly when the social costs of extended terms far outweigh the
benefits even to right owners. These social costs include the dead
weight loss associated with high prices, the use of unnecessary, costly
and inefficient distributions systems for protected works, barriers to
accessing works that are out of print or not commercially exploited,
restrictions of the re-use and re-purposing of works, and copyright
related restrictions of speech and expression. These harms concern
everyone, and retard development. The harm is more acute for lower
income and socially vulnerable populations.

5. Extensions of terms of protection are an inefficient and harmful way
to address the legitimate interests of creative communities regarding
moral and material interests in works, particularly when compared to
other options such as ensuring fair modalities for the transfer of
rights, and the development of new business models to remunerate
copyright owners.

Works Not Exploited by Copyright Owners

6. The vast majority of protected works are either not exploited by the
owner, or are classified as orphaned works, where it is impossible to
even locate the owner. Consumers and creative communities are both
harmed by the lack of access to
such works.

Registration of Works

7. Prior to the United States joining the Berne Convention, copyrighted
works that were not registered with the U.S. Library of Congress entered
the public domain. Many experts believe that it is a mistake to extend
protection to all works, regardless of copyright registration, and that
this practice has dramatically expanded the number of protected works to
include countless works that are not actively exploited by copyright
owners, including those for which it is difficultly to establish
ownership, or where it is difficult to know when terms of protection
have expired.

8. Article 5 of the Berne Convention for the Protection of Literary and
Artistic Works places certain restrictions on government obligations to
comply with formalities. The Rome Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting Organizations,
which has been adopted by the members of the EU, has no such
restrictions.

9. The Berne restrictions on formalities do not rule out systems of
registration for copyrighted works, as evidenced by the existence of a
copyright registration system in the United States. The Berne
restrictions do not apply to the term that exceeds that required in the
Berne Convention for copyrighted works, if the extended period of
protection is fashioned as a right that is separate from the rights
created by the Berne Convention.1

Remedies for Uses without Authorizations from Right Owners

10. TACD notes a US library of Congress Copyright Office report
recommended a system of access to orphan works that was based in part
upon limits to right owner remedies for unauthorized uses, including in
particular limitations on the use of injunctions and compensation for
unauthorized use.

11. TACD notes the neither the Berne Convention nor the Rome Convention
provide specific obligations regarding the enforcement of rights.

12. TACD notes the WTO TRIPS Agreement sets standards for enforcement of
copyright and related rights.

13. TACD notes the EU and the US are engaged in several non-transparent
negotiations on intellectual property enforcement, including a proposed
Anti- Counterfeiting Trade Agreement (ACTA), which deal extensively with
the enforcement of copyright and related rights, including the specific
areas that have been considered as part of a system for access to
orphaned works.

1 A useful analogy is the case in some counties for the period of
extended protection that is given the pharmaceutical drugs that
experience long delays in regulatory approval, or which benefit from sui
generis forms of protection, such as the exclusive rights to rely upon
drug registration data, or market exclusivity under the US or EU orphan
drug legislation.
--
James Love, Director, Knowledge Ecology International
http://www.keionline.org | mailto:james.love at keionline.org
Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.=
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