will be seen, the cumulative effect of these laws, treaties and conventions results in a continued disharmony in copyright duration that prejudices the rights of U.S. authors vis á vis European authors, and that also creates disincentives for authors to publish -- or first publish-- their works in the United States.

The proposed U.S. Copyright Term Extension Act would, if adopted, greatly increase the U.S. term of protection for both EC- and U.S.-origin works, and would thus eliminate or narrow many of the duration discrepancies between the US. and the EU. However, even if the U.S. adopts the Copyright Term Extension Act, terms of protection will not be fully harmonized.

By July 1, 1995, all member states of the European Union are required to have implemented the EC Term Directive 57 The EC Term Directive will harmonize the copyright term of protection in EU Member States to 70 years p m a for works by individual or joint authors, and to 70 years post-publication for works owned by corporate rightholders. It will also revive certain copyrights if they have fallen in the public domain in one Member State but are still subject to protection in another Member State.

The duration of protection in most EU Member States will substantially increase as a result of the EC Term Directive. Under the EC Term Directive, those rights will be harmonized at 70 years p.m.a., resulting in an additional 20 years of copyright protection in most Member States.

Article 1(1) of the Directive states:

57It is not unusual for member states to fail to implement a directive until long after the implementation deadline. For example, the EC Software Directive had an implementation deadline of January 1, 1993. However, 3 member states have not yet adopted the directive, and 3 member states adopted the directive nearly a year late. CELEX No. 791L0250 Failure by a member state to timely implement directives can, under certain circumstances, subject the defaulting member state to damages caused to private parties by the state's failure. Francovich and Bonifaçı v. Italian Republic. Cases C-6. C-9/90 [1992] IRL R. 84 The extent of member states' liability for such damages (including lost profits, expenses and exemplary damages) is presently under review by the European Court of Justice Brasserie du Pécheur SA v Federal Republic of Germany. Case Nos C-46/93 and C-48/93. A private party may not, however, rely in a national court on the provision of a directive as against another private party until that directive has been implemented into the national law in which enforcement is sought. Marshall v. Southampton and South West Hampshire Area Health Authority. Case 152/84 [1986] E.C.R. 723.

[t]he rights of an author of a literary or artistic work within the meaning of
the Berne Convention shall run for the life of the author and for 70 years
after his death, irrespective of the date when the work is lawfully made
available to the public.

If a work is not published until after 70 years following the date of the author's death, copyright endures for 25 years after the work is lawfully published or lawfully

58

communicated to the public. Copyright in a joint work will endure for 70 years after the death of the last-surviving author." Copyright in corporate works will run for 70 years after the work was lawfully made available to the public.60 All terms are to be "calculated from the first day of January of the year following the events which gives rise to them."61

The EC Term Directive applies retroactively to revive copyrights in works that may have expired in one EU country but had subsisting copyrights in another country. The Directive provides that "[t]he terms of protection provided for in this Directive shall apply to all works and subject matter which are protected in at least one Member State on July 1, 1995."62 Because Germany has a term of protection of 70 years, works which expired under a 50 years p.m.a. term but which would have otherwise enjoyed protection in Germany (that is, works created by authors who died between 1925 and 1945) would be revived. The potentially vast impact of this revival mechanism is illustrated by a brief list of artists whose works could be subject to revival under the EC Term Directive: Paul Klee, Kandinsky, Munch, Mondrian, Picasso, James Joyce, D.H. Lawrence, A. Conan Doyle. By operation of the mandatory rule of the shorter term, discussed below, works by U.S. nationals will not benefit from this revival mechanism.

The Directive does not retroactively shorten the term of protection for works whose term of protection is longer than 70 years p.m.a prior to the effective date of the EC Term Directive 63 However, as to works created in those countries after 1 July 1995, the term of protection will be 70 years p.m.a.

The EC Term Directive states that it shall be without prejudice to any acts of exploitation performed prior to July 1, 1995." Therefore, rights of third parties which were acquired before a work's term was extended or revived are mandated to be protected. However, the EC Term Directive provides no further guidance on how such acquired rights will be protected, mandating only that Member States "adopt necessary provisions to protect in particular acquired rights of third parties." Therefore, it remains to be seen how reliance parties, including those parties who incorporated a previously public domain work into a derivative work, will be treated 65 Because the EC Term Directive does not specify the manner in which reliance parties must be accommodated, it is quite possible that implementing legislation in the various EU Member States will result in differing rights for reliance parties. 66

Works of foreign origin.

Article 7 of the EC Term Directive states that:

[w]here the country of origin of a work, within the meaning of the Berne
Convention, is a third country, and the author of the work is not a
Community national, the term of protection granted by the Member States
shall expire on the date of expiry of the protection granted in the country of
origin of the work, but may not exceed the term laid down in Article 1,67

In accordance with this Article, works by nationals of EU countries will be exempt from rule of the shorter term treatment in EU countries, regardless of the country in which a work is first published. The EC Term Directive goes further than Phil Collins regarding the rights it grants to EU nationals Whereas Phil Collins mandated that an EU country cannot apply rule of the shorter term treatment to works from another EU country on a discriminatory basis, the EC Term Directive provides that works of all EU nationals will receive the 70 years term provided in the Directive, regardless of the country of origin of the work.

With respect to protection under the Directive for "nationals" of EU countries, the Berne

66 For a criticism of the complications arising from the ambiguity of this provision, see W.R. Cornish, "Intellectual Property. 13 Y B. of Eur. L. 485, 496 (1993)

67 Berne Convention, supra note 13 at Art 7(1).

Convention mandates that if the author is not a national of the country of origin of the work for which he is protected under the Convention, he shall enjoy in that country the same rights as national authors. 68 Accordingly, under Berne, if a work is first published in an EU country (and not simultaneously published in another shorter-term Berne country, e.g., the U.S.) that author shall be entitled to the longer protection provided in the EC Term Directive.

However, if an author is not an EU national and the work is not first-published in an EU country, the rule of the shorter term is mandatory 69 This results in preferential treatment for EU nationals whose works may have otherwise received rule of the shorter term treatment in EU countries if the work had been first published in a shorter-term country, for example, the United States.

The European Commission emphasized this discriminatory result when adopting the Directive. In the Explanatory Memorandum to the proposal for the Directive, the Commission stated its support for application of the rule of the shorter term against nonEU nationals and against works published outside the Community:

It is only natural that 'foreign' works and third country nationals should not
be protected for a period longer than is considered appropriate by their
own country. Moreover, since Community works and nationals are not
protected for as long a period in those countries as they are in the
Community, comparing terms of protection is a way of ensuring
reciprocity...70 If third countries are to be induced to improve their

protection from the point of view of its duration, one should avoid granting
them the long Community term unilaterally."

As is evident, the Commission's goal in discriminating against non-EU nationals is to induce countries with deficient terms of protection--namely, the U.S.--to improve their protection. It should be noted, however, that despite this commentary, the text of the directive itself (as well as Berne) does not permit discrimination against non-EU nationals if the country of origin of the author's work is an EU country.

An additional note should be made regarding the nationality of the author. Under the Berne Convention, "authors who have their habitual residence in [one of the countries of the Berne Union] shall, for the purpose of this Convention, be assimilated to nationals of

that country "72 Therefore, a U.S. "national" (from a citizenship perspective) who has his or her habitual residence in an EU country can take advantage of the benefits of the EC Term Directive's longer terms. It should be noted that GATT-TRIPS defines "national" as "persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in" the specific country "3

The U.S. clearly responded to the extended duration provided under the EC Term Directive. In introducing the House version of the Copyright Term Extension Act, discussed below, Rep. Moorhead commented that "once the EU Directive is implemented, U.S. works will continue to be granted the shorter life plus 50 year term before falling into the public domain. He further stated that if the Act is not adopted, "American creators will have 20 years less protection than their European counterparts--20 years during which Europeans will not be paying Americans for their copyrighted works. 74

5. Summary: EU/US discrepancies widened

Consider again Mondrian's work Molen, the U.S. protection for which terminated on December 31, 1984. Whereas prior to the adoption of the EC Term Directive, the EUU.S. discrepancy was 10 years, after adoption of the EC Term Directive, copyrights in the work will be revived and enforceable until January 1, 2014 -- a difference of 30 years. This huge discrepancy will not be eliminated by the Copyright Term Extension Act, discussed below, as such act applies only prospectively and does not eliminate the problems which arise from calculating US duration for pre-1978 works from the date of publication or creation.

The effect of these disparities complicates the creation and marketing of products containing pre-existing works, such as multimedia products. Consider the effects of these disparity of protection for a hypothetical CD ROM encyclopaedia Insofar as the US. does not fully comply with the Berne Convention minimum duration of protection and the EU does, a large discrepancy in rights for a given work can exist between the EU and the U.S. Imagine attempting to create and market a multimedia encyclopaedia containing works of authorship that are still subsisting or will be revived in the EU but are expired in the U.S. Should the current copyright holders provide access to copy such works for use in the U.S., where the works could be individually copied and potentially not be subject to

72 Berne Convention, supra note 13 at Art 3(2)

13 GATT-TRIPS, supra note 14 at Art. 1(3)

74 Cong Rec. 2/16/95. p. E379