European Copyright gets 'Use It Or Lose It' clause

An article by Andrew Orlowski of The Register reports:

The European Commission today approved an extension to the life of sound recording copyright, from 50 to 90 years - but with a twist.

The EC has insisted on a "use it or lose it" clause, which allows the recordings to revert to the performer if the producer or record company has no desire to market the recording.

While I strongly oppose copyright term expansion (it is already far too long for most types of works), I agree with this 'twist'. I think that reverting copyright back to the first holder of copyright (general rule) or to the performer if the "maker" of a sound recording isn't willing to license, is a very good idea. This would be an alternative to the compulsory licensing option discussed in Copyright: locks, levies, licensing or lawsuits? Part 2: levies.

I think Canada should investigate something similar, but where the reverting would happen much sooner. Any work where licenses are not made available to the public on reasonable terms for a 5 or 10 year period would cause this clause to kick in. This would eradicate the concept of "out of print" which makes no sense to still exist with new media where publication is so cheap. Copyright holders will not likely have to make the material available themselves, just authorize third parties who will very willingly create a market for older material.

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Sounds like a great idea, Russell, but wouldn't the TRIPS agreement get in the way? If so, I doubt we'd be able to get enough consensus to modify the Berne Convention, particularly with the US lobbying for ever greater protection.

I'm not an expert on the Berne Convention, so I'd be happy to be shown that I'm wrong here.

WIPO treaties are mods on Berne convention

It is a political myth to suggest that the Berne convention can only be modified in one direction (to further favour existing copyright holders over the interests of creators/citizens). All the other 5 Copyright treaties are a modification of treaty #1 which is Berne.

Free/Libre and Open Source Software (FLOSS) consultant.

Another thought.

Another way to look at this: If the maximum term of copyright is still life+50, and this only affects transfers of copyright to other than the first holder of copyright (IE: puts an expiry on contracts), I'm not sure that this type of policy would affect Berne at all.

There is also a 3-step test from Berne, also ncluded in Article 13 of TRIPs, which reads:

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

An obvious question: how could a rule that says that "those who are not exploiting a work might loose their copyright" come into "conflict with a normal exploitation of the work"?

What legitimate interests of the rights holder to not exploit the work could exist?

Free/Libre and Open Source Software (FLOSS) consultant.