Summarize

Copyright is the right of limited duration. This seems to mean that after a certain period of time the author's work can be freely used in any way by any person. Whether this statement is absolutely true or there still are some restrictions? What are the national and international rules? Whether and to what extent the work inspired by the protected author's work is eligible for protection? Here is the overview of these and related questions*

*Intro by ArtLaw.club

 

Ingrīda Veikša, Dr.iur., professor

Turiba University, Riga, Latvia

The works, which copyrights have expired

Copyright is the right of limited duration. Contrary to the ownership of the physical objects that will continue as long as there is the subject of copyright has the right to a time limit. After this deadline, the work becomes public property, and everyone can use it freely. Works whose copyrights have expired, anyone can freely use, without asking for any permission and without paying. These works are all in public domain.

Copyright is protected under the law of the country where the work is used. Since most of the countries have acceded to the Berne Convention[1], the minimum protection requirements in all countries are the same. Additionally - EU countries have their national laws harmonized with EU directives. So – regulation of copyright protection in all countries of the world are pretty similar.

International regulation

According to the Berne Convention term of protection of authors rights is the life of the author and fifty years after his death.( Article 7, part 1)

Rome Convention[2] establishes the term of protection for performers, phonogram producers and broadcasters at least until the end of a period of twenty years following requirements (Article 14):

a) the fixation was made for phonograms and for performances incorporated therein;

b) the performance took place—performances not incorporated in phonograms;

c) the broadcast took place — for broadcasts.

National regulation

Rights of authors

Copyright Law[3] in Latvia provides that copyright shall be in effect for the entire lifetime of an author and for 70 years after the death of an author (Section 36), except cases, defined in Section 37:

1) Copyright to audio-visual works shall be in effect for 70 years after the death of the last of the following persons: the director; the author of the script; the author of the dialogue; the author of a musical work created for an audio-visual work;

2) Copyright to a work that has legally become available to the public anonymously or under a pseudonym shall be in effect for 70 years from the time when it has legally become available to the public. If during the time referred to the author of a work whose work has legally become available to the public anonymously or under a pseudonym reveals his or her identity, or if there is no doubt about the identity, Section 36, Paragraph one of this Law shall apply.

3) Copyright to a work created by co-authors shall be in effect for the duration of the lives of all the co-authors and for 70 years after the death of the last surviving co-author;

4) As to authors, whose works were prohibited in Latvia or the use of which was restricted from June 1940 to May 1990, the years of prohibition or restriction shall be excluded from the term of the copyright.

Copyright term of protection for co-written works is calculated specifically: the copyright in a work created by co-authors, is in force throughout the author's life and for 70 years after the last surviving co-author's death.

Copyright in audiovisual works shall be valid for 70 years after the death of the last of audiovisual authors (director, scriptwriter, dialogue writer, specially created by the author of a musical work).

The law is specific reservation with regard to authors whose works had a Latvian banned or whose use from June 1940 to May 1990 was limited, they have the copyright of the limitation period shall be deducted the prohibition or restriction of years.

Rights of performers, producers and broadcasters

The rights of performers are valid for 50 years from the first performance. If there is fixation of the performance in a phonogram is lawfully published or communicated to the public, the term of protection is valid for 70 years after publication of the phonogram to the public or days, depending on which action was the first. If at this time the performance is not fixed in a phonogram, but is fixed in another way, then the term of protection is valid for 50 years after the fixation of lawful publication or communication to the public daily, depending on which action was the first. Performers' moral rights remain as long as the duration of the economic rights.

Film producer the right is valid for 50 years after the fixation is made. If at this time the film is lawfully published or communicated to the public, the term of protection is valid for 50 years after publication or communication to the public daily, depending on which action was the first.

Producers of phonograms is valid for 50 years after the fixation is made. If within this period the phonogram was lawfully published or, failing such publication, legally published, the term of protection is valid for 70 years after publication or communication to the public daily.

Broadcasters rights are in effect for 50 years after the first transmission.

After this deadline, related objects can be used without permission being asked and without pay.

 

What can be done with the author's works, when they are in public domain?

After above mentioned deadline, the works can be used without permission being asked and free of charge, but the work becomes public domain only of the author's economic rights point of view. According to the Berne Convention (Article 6bis) the author's moral rights does not expire and are maintained after his death, at least until the expiry of the economic rights.

These rights are:

1. the right to claim authorship of the work;

2. to object to any distortion, mutilation or other modification of work,

3. any derogatory action in relation to the work, which would be prejudicial to his honor or reputation.

According to the Copyright Law (Article 39, part1) authors' moral rights (the right of authorship, the name of retaliation labor mutilation) are valid for an unlimited period of time.

It means that work in public domain can be used at least in following situations:

1. made available on internet (made available to the public by wire or by other means, so that it is accessible in an individually selected location and at an individually selected time);

2. copied directly or indirectly, temporarily or permanently and distributed by any means,

3. broadcasted by TV and radio channels, retransmited by cable operators,

4. translated, adapted for stage or screen,

5.  used in commercial materials, printed on any items, e.t.c.

Inspired by the author's work, anyone can create a new work, as a result of his new own creative activities. In such a case the new author owns the rights in the new work, and he can require his name to be indicated to work. However, this new work may not be just modification of existing work, as this would violate the author's right to inviolability of a work.

Information on the author's name does not necessarily have to be indicated on the work, as the law provides that the author may require his name to be indicated, or to require the use of a pseudonym or anonymity (Article 14, Clause 4). This means that the law certainly does not require the name to be indicated.

Copyright law allows the work to be is parodied or caricatured at any time, even if the economic rights have not yet been exhausted (Article 19, Clause 9). However, doing so, one should be very careful not to damage his honor or dignity. The law does not explain what is parody or caricature, so the explanation can be found in the judgment of European Court of Justice in case Deckmyn [4].

Court found that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.