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Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights is a
European Union directive A directive is a legal act of the European Union that requires member states to achieve a particular result without dictating the means of achieving that result. Directives first have to be enacted into national law by member states before thei ...
in the field of EU copyright law, made under the internal market provisions of the
Treaty of Rome The Treaty of Rome, or EEC Treaty (officially the Treaty establishing the European Economic Community), brought about the creation of the European Economic Community (EEC), the best known of the European Communities (EC). The treaty was sig ...
. It was replaced by the 2006
Copyright Term Directive Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) is a consolidated version of the former EU Directive harmonising the te ...
(2006/116/EC).


Duration of protection

The principal goal was to ensure that there was a single duration for copyright and
related rights In copyright law, related rights (or neighbouring rights) are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". ''Neighbouring rights'' is a more literal translation ...
across the entire
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
. The chosen term for a work was 70 years from the death of the author (''post mortem auctoris'', pma) for
authors' rights "Author's rights" is a term frequently used in connection with laws about intellectual property. The term is considered as a direct translation of the French term ''droit d’auteur'' (also German ''Urheberrecht''). It was first (1777) promoted ...
regardless of when the work was first lawfully published (Art. 1), longer than the 50-year ''post mortem auctoris'' term required by the
Berne Convention for the Protection of Literary and Artistic Works The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...
(Art. 7.1 Berne Convention). In the case that the author is anonymous or pseudonymous the term for a work is 70 years from the date of first lawful publication. The directive notes that the original goal of the Berne Convention was to protect works for two generations after the death of the author, and that fifty years was no longer sufficient for this purpose (para. 5 of the preamble). It is often stated that 70 years pma was the longest copyright term of any Member State at the time: this is not strictly correct, and is not quoted as the reason for the choice in the directive. Where a Member State protected a work for a longer period at the time the directive came into force, the copyright term is not reduced rt. 10(1) but other Member States will not respect the longer period. The duration of protection of
related rights In copyright law, related rights (or neighbouring rights) are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". ''Neighbouring rights'' is a more literal translation ...
(those of performers,
phonogram Phonogram may refer to: * A sound recording – see Geneva Phonograms Convention * ''Phonogram'' (comics), a comic book by Kieron Gillen and Jamie McKelvie * Phonogram (linguistics), a grapheme which represents a phoneme or a combination of phone ...
and film producers and broadcasting organisations) was set at fifty years with the following rules for calculating the starting date (Art. 3). This fifty-year period was in reflexion of the negotiating position of the European Community at the negotiations which led to the
Marrakech Agreement The Marrakesh Agreement, manifested by the Marrakesh Declaration, was an agreement signed in Marrakesh, Morocco, by 123 nations on 15 April 1994, marking the culmination of the 8-year-long Uruguay Round and establishing the World Trade Organiz ...
s, including the
Agreement on Trade-Related Aspects of Intellectual Property Rights The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by na ...
(TRIPS).


Copyright restoration

The new copyright terms applied also to works which were already in existence when it came into force, as was held by the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...
in the ''Butterfly'' case, even if they had previously entered the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
. Strictly, they applied to works which were protected in at least one Member State on 1 July 1995, although most Member States chose to apply them to all works which would qualify on the basis of the protection terms, regardless of protection elsewhere: this approach is much simpler for national courts to apply, as they do not have to consider foreign laws. The effect of the approach was shown by the judgment of the European Court of Justice in the ''Puccini'' case, which covered facts arising before the directive entered force. The State of
Hesse Hesse (, , ) or Hessia (, ; german: Hessen ), officially the State of Hessen (german: links=no, Land Hessen), is a state in Germany. Its capital city is Wiesbaden, and the largest urban area is Frankfurt. Two other major historic cities are ...
in Germany had staged the opera ''
La Bohème ''La bohème'' (; ) is an opera in four acts,Puccini called the divisions '' quadri'', '' tableaux'' or "images", rather than ''atti'' (acts). composed by Giacomo Puccini between 1893 and 1895 to an Italian libretto by Luigi Illica and Giusep ...
'' by Puccini during the 1993/94 season at the Hessische Staatstheater Wiesbaden without the permission of the copyright holder. The opera was first published in Italy and Puccini died on 29 November 1924. At the time, Italy applied a copyright period of 56 years pma, so Italian protection had expired at the end of 1980: Germany, however, applied a 70 years pma period to works of German authors and the "rule of the shorter term" (Art. 7.8 Berne Convention) to foreign works. The Court ruled that the application of the rule of the shorter term between Member States was a breach of the principle of non-discrimination enshrined in Article 12 of the
Treaty instituting the European Community The Treaty of Rome, or EEC Treaty (officially the Treaty establishing the European Economic Community), brought about the creation of the European Economic Community (EEC), the best known of the European Communities (EC). The treaty was signe ...
: hence the work should have been protected in Germany even if it was no longer protected in Italy. Such cases should no longer arise with the implementation of the directive.


Films and photographs

The directive also harmonises the copyright treatment of films ("cinematographic and other audiovisual works") and photographs throughout the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
. Films are protected for 70 years from the death of the last of the following people to die rt. 2(2) the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work. This applies regardless of the provisions of national law regarding the authorship of the film, ensuring a common duration of copyright between Member States. The principal director of the film is always considered as an author of the film, although national legislations may provide for other co-authors rt. 2(1) Before the directive, different Member States had applied widely different criteria of originality and creativity to the copyright protection of photographs. These were harmonised by article 6, which states that the only permissible criterion for full protection (70 years pma) is that the photograph is "original in the sense that
t is T, or t, is the twentieth letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''tee'' (pronounced ), plural ''tees''. It is der ...
the author's own intellectual creation". Member States may protect photographs which do not meet this criterion by ''sui generis''
related rights In copyright law, related rights (or neighbouring rights) are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". ''Neighbouring rights'' is a more literal translation ...
.


Previously unpublished works

The directive accords a
publication right Publication right is a type of copyright granted to the publisher who first publishes a previously unpublished work after that work's original copyright has expired. It is in almost all respects the same as standard copyright, but excludes moral ...
to the publisher of a
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
work which was previously unpublished, for 25 years after the date of publication (Art. 4). The work must have been "legally published". In some countries (e.g. France), authors and their heirs have a perpetual right to authorise (or not) the publication of a work and, in these cases, publication must be with the consent of the holders of the
moral rights Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. The moral rights include the right of attribution, the right to have a work ...
in the work.


Other provisions

As is normal in the field of copyright law, all periods of protection run until the end of the calendar year in which they would otherwise expire (Art. 8). Member states may protect "critical and scientific publications of works which have come into the public domain" for a maximum of thirty years (Art. 5). The protection of
moral rights Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. The moral rights include the right of attribution, the right to have a work ...
is left to national legislation (Art. 9).


Implementation


See also

*
Copyright law of the European Union The copyright law of the European Union is the copyright law applicable within the European Union. Copyright law is largely harmonized in the Union, although country to country differences exist. The body of law was implemented in the EU through ...
*
Grandfather clause A grandfather clause, also known as grandfather policy, grandfathering, or grandfathered in, is a provision in which an old rule continues to apply to some existing situations while a new rule will apply to all future cases. Those exempt from t ...
*
Directive on the term of protection of copyright and certain related rights Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) is a consolidated version of the former EU Directive harmonising the te ...


Citations and footnotes


External links


Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights
replaced by directive 2006/116/EC
Adoption process of directive 93/98/EECDirective 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version)
is the consolidated version of 93/98/EC with amendments that is in force since 2007.
Adoption process of directive 2006/116/EC
*Geller, P. (2000).

, ''
Entertainment and Sports Lawyer ''Entertainment and Sports Lawyer'' is a law review published by the Forum on the Entertainment and Sports Industries of the American Bar Association. It is aimed at lawyers who specialize in entertainment and sport Sport pertains to any f ...
'', 18(2), pp. 7''ff'' (ABA Forum on Entertainment Industries, 2000). {{Intellectual property laws of the European Union Copyright law of the European Union European Union directives
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
1993 in law 1993 in the European Union