Term of Protection
The trend over time has been to increase the period of copyright protection and the scope of protected rights. To some extent, this reflects technological developments.
The period was 14 years renewable at the beginning of the 18th century. It increased to 28 years renewable in 1814. This is extended further to the life of the author plus 42 years in 1842. Reflecting the Berne convention, protection was extended to the life of the author plus 50 years under the Copyright Act 1911 and the Irish Copyright Act 1963.
Early legislation extended copyright to literary, musical, dramatic and artistic works. The Copyright Act 1963 also extended protection to sound recordings, films broadcasts and typographical arrangements of published additions in accordance with emerging technology.
The harmonisation of the scope and term of copyright protection was an important part of achieving the European Union’s single market in goods with the copyright-protected element.A 1993 EU directive (updated and consolidated in 2006) sought to provide a degree of harmonisation as to the scope of protection and protected terms for copyright in EU states. The 1993 EU Directive was given effect in Irish law by 1995 Regulations.
The European Court of Justice had held in 1989 that the variations in the degree of property protection under the copyright laws of member states were justifiable exceptions and could not be overridden by EU treaty principles and the free movement of goods. This meant that states’ copyright laws could impede the free movement of copyrighted works on a tangible medium as well as their cross-border provision of services involving copyrighted elements.
The 1995 regulations extended protection for literary, dramatic, musical and artistic works to the lifetime of the author plus 70 years. Unlike the earlier law, this 70-year period applied irrespective of when the work had been published or otherwise been lawfully made available.
This is now reflected in the Copyright and Related Rights Act 2000. The change in law revived the rights of authors who died or, in other cases where the term did not depend on death, publications between 1925 and 1945.
Anonymous & Unpublished
The 1993 directive reduced copyright protection for unpublished work but extended it for most other classes of work. In the case of anonymous works, protection applies for 70 years following the first publication or after the work is made lawfully available.
Where publication is under a pseudonym, the term runs from the author’s death, where there is no doubt as to identity. The period will also run from death if the author discloses his or her identity within the 70-year period.
Cinema & Sound
Cinematographic copyright subsists for 70 years after the death of the latest of the principal director, screenplay author, dialogue author and composer of commissioned music in relation to the film. The identification of the term of copyright with these parties does not affect the ownership of the copyright itself, which is likely to belong to the producer.
In the case of sound recordings, the copyright of the producer is fifty year period. It runs from the earlier of the date of the first publication or communication to the public.
There is a stand-alone right to exploit previously unpublished works, recordings, broadcasts and films which are not in the public domain. The right may be exercised by communication of the work within 50 years of being made.
The subsequent lawful publication to the public gives the owner rights equivalent to the rights of the author, maker or broadcaster for 25 years from the date of publication or communication to the public. This new standalone right is designed to encourage the publication of previously unpublished works.
Effect of Extension
The extension of copyright in 1995 caused certain works published in the period 1925 to 1945, which would have been outside copyright, to fall back inside copyright protection again. Some protections were provided against persons bona fide exploiting such works.
Where a person exploited a work before the publication of the directive extending copyright and that work was in the public domain, that person may avoid copyright infringement liability by reason of the revival of the copyright. If exploitation or substantial preparations were undertaken between 1993 and 1995, protection might also be available. The person concerned must show that he had no reasonable grounds for suspecting that the copyright would be revived.
2000 Act Traditional Copyright
The Copyright and Related Rights Act 2000, came into force on 1st January 2001. The new Act largely replicated the provision in the 1995 Regulations in relation to new protections and the copyright term.. It modernised copyright and extended protection to some new types of works as well as modern media and distribution channels.
Under the 2000 Act, copyright in a literary, dramatic artistic or musical work subsists for 70 years after the life of the author, regardless of when it is first lawfully made available. Copyright is extinguished if a work is not made available within 70 years of its creation if the work is a work that obtains copyright by reference to the life of the author. The provisions in the 1995 regulations regarding anonymous works is similar to that set out above.
2000 Act New Rights
The updated provisions in the 1995 regulations in relation to films and sound broadcasts and the stand-alone right to exploit previously unpublished work are replicated in similar terms in the 2000 Act.
The legislation extended protection to cable programs and computer-generated works. Cable programs are granted copyright for 50 years running from when it was lawfully included in a cable program service.
Computer-generated work copyright expires 70 years after it is first made available lawfully to the public.
In case of work for which copyright subsists other than with reference to the life of an author,, such as an anonymous literary work, the 25-year stand-alone right is exercisable by the person who lawfully published the work after the expiration of the copyright.
A 2011 directive is designed to give greater rights to performers in recordings. Performance rights endure for 50 years after the performance or the date on which it is fixed or recorded and thereby first communicated to the public first occurs.
In the case of performances fixed in phonograms by wire or wireless means in such a way that the public may have access to them at a time individually chosen by them, the performer’s copyright is extended to 70 years after the date of publication or making it available.
The directive enhances protection for musical compositions with words with a view to harmonising the respective literary and musical copyright. After the commencement of the legislation, it expires 70 days after the death of the last of the author of lyrics by the composer of the musical elements.
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