Devils in the detail: term extension and temporary reproductions Anne Flahvin

Presentation Title ©2004 Baker & McKenzie 2 Introduction Life plus 70 Impact on works which are already in the public domain? Golan v Ashcroft: US challenge to constitutionality of reviving copyright in public domain works Temporary reproductions Will browsing and caching become remunerable? If uniformity is so important, why no broad- based fair use right?

Presentation Title ©2004 Baker & McKenzie 3 Life plus 70 Despite misgivings expressed by Trade Minister Vaile as late as December 2003, US owners prevailed Will the extension be applied to “revive” public domain works No obligation to do so: clause There is precedent for this…

Presentation Title ©2004 Baker & McKenzie 4 Life plus 70 EU: Article 10(2) EC Term Directive Terms of protection apply to all works and subject matter which are protected in at least one member state on July US: s 514 Uruguay Round Agreements Act extended copyright protection to all foreign works that were in public domain in US if term of protection had not expired in source country or work had fallen into public domain in US through non-compliance with formalities (eg failure to renew)

Presentation Title ©2004 Baker & McKenzie 5 Life plus 70 Golan v Ashcroft Plaintiffs are music conductors and other users of public domain material Challenged constitutionality of removal of literary and artistic works from public domain US Govt filed Motion to Dismiss: argued that the US Sup Ct decision in Eldred v Ashcroft was a complete answer to the claim March 2004: US District Court for District of Colorado held that while further challenge to time limitation in CTEA was foreclosed, it was open to challenge the constitutionality of the ‘revival’ of copyright in public domain works

Presentation Title ©2004 Baker & McKenzie 6 Temporary reproductions Article obligation to ensure that temporary reproductions come within exclusive rights of copyright owner: what will this mean for law on caching and browsing? : exceptions to exclusive rights confined to certain special cases that do not conflict with normal exploitation of work and do not unreasonably prejudice legitimate interests of rights holder S 43A and 111A – will this require amendment? Service provider exceptions ( ) – “safe harbour” provided comply with certain conditions Will these prove too onerous (eg comply with copyright owner rules re refreshing, uploading etc)?

Presentation Title ©2004 Baker & McKenzie 7 Broad based fair use right Purpose based fair dealing exception is significantly narrower than US fair use right CLRC in Simplification Report recommended adoption of US style right Two issues just discussed – term extension and temporary reproductions – highlight the need for a more flexible exception In an age where every second teenager (and lawyer) sports an mp3 player, the law is looking increasingly ridiculous