[pd-discuss] RE : PD help-French law

Fri Mar 11 21:32:03 UTC 2011

These kinds of dates always make me nervous, as you KNOW Peter.  It is a good guess, but I wouldn't want to count on it. 

Elizabeth Townsend Gard
Associate Professor,
Co-Director, Tulane Center for Intellectual Property Law and Culture, and
Director, The Durationator/Usable Past Project
Tulane Law School
Weinmann Hall
6329 Freret Street
New Orleans, LA 70118-6231
townsend at tulane.edu
skype name:  elizabethtownsendgard

________________________________

From: pd-discuss-bounces at lists.okfn.org on behalf of Peter B. Hirtle
Sent: Fri 3/11/2011 1:44 PM
To: Public Domain discuss list
Subject: Re: [pd-discuss] RE : PD help-French law

Catherine, this is incredibly helpful.  From your message, I take that the earliest that one can be "mort pour la France" is 1914.  Furthermore, at least for musical works, it is possible to imagine that someone published a work in 1914 and then died for France that year.  The term of that work would therefore be life +70+30+14 years and 272 days., or life +114.75 years. 

Does anyone know if there is a longer term anywhere in the world?

It would seem that we can assume that anything published non-posthumously before 1896 is in the public domain everywhere in the world.  Anything published after this date, or anything published posthumously, requires further investigation.

Peter

-----Original Message-----
From: pd-discuss-bounces at lists.okfn.org [mailto:pd-discuss-bounces at lists.okfn.org] On Behalf Of Jasserand, Catherine
Sent: Friday, March 11, 2011 7:27 AM
To: Public Domain discuss list
Subject: [pd-discuss] RE : PD help-French law

Dear Peter,

I am sending you a detailed answer below. Unfortunately a word version of it (more practical) is too heavy for the group discussion.
In case you need further clarifications, please let me know.

Best regards,
Catherine

--
According to me, the interpretation of the Court decisions can lead to different hypotheses.

First of all to assess whether the extension of term of protection is still applicable or not, you need to check what would have been the total term of protection before the implementation of the Directive.
You should also have in mind that French law has introduced three different extensions of term: two to compensate the fact that the a work published during WWI or WWII could not be exploited during these periods of time (i.e. extension of 14 years and 272 days for a work published during WWI and an extension of 8 years and 120 days for a work published during WWII); a third one to 'reward' an author (and thus his heirs) who 'died for France' (extra protection of 30 years).
Then you should distinguish musical works (which already benefitted from a protection of 70 years p.m.a) and non-musical works (which benefitted from a protection of 50 years p.m.a. before implementation of the Directive)

The different hypotheses are the following:

1-      musical works published:
(a)     during WWI benefitted from a protection of 70 years+14 years and 272 days
(more than 84 years). In that case, applying the new harmonized term of protection would reduce the duration of protection. Thus the extension should subsist.
(b)     During WWII benefitted from a protection of 70 years + 8 years and 120 (more than 78 years). Same conclusion as above.

2-      non-musical work published:
(a)     during WWI benefitted from a protection of 50 years+ 14 years and 272 days (more than 64 years). In that case, the new harmonized term of protection (70 years p.m.a.) has absorbed the extension.
(b)     During WWII benefitted from a protection of 50 years + 8 years and 120 days (more than 58 years). Same conclusion as above.

It should be noted that in its decisions, the Court of Cassation only had to rule whether the extensions due to wars still applied and not whether the extension rewarding an author who died for France still applied. Therefore there is a legal uncertainty regarding the fate of the extra protection of 30 years for authors who died for France. But it could be interpreted as the following:

1-      musical works of authors who died for France benefitted from a term of protection of 70 years p.m.a. + 30 years (= 100 years) before harmonization, which should still subsist.
(a)     in the event the musical work was published during WWI, you should add an extension of 14 years and 272 to the 100 years of protection. Total= 114 years and 272 days.
(b)     In the event the musical work was published during WWII, you should add an extension of 8 years and 120 days to the 100 years of protection. Total= 108 years and 120 days.

2-      non-musical works of authors who died for France benefitted from a protection of 50 years p.m.a. + 30 years (80 years) before harmonization, which should still subsist. However commentators of the decisions disagreed on whether or not you should add to this longer term the extensions due to wars (respectively 14 years and 272 days and 8 years and 120 days) in case the non-musical work was published during WWI or WWII.

As you can see, the decisions of the Court of Cassation do not permit to completely exclude the application of longer terms of protection. We can only regret that the French Parliament did not decide to clarify the status of these provisions.

________________________________________
De : pd-discuss-bounces at lists.okfn.org [pd-discuss-bounces at lists.okfn.org] de la part de Peter B. Hirtle [pbh6 at cornell.edu] Date d'envoi : jeudi 10 mars 2011 20:35 À : Public Domain discuss list Objet : Re: [pd-discuss] PD help-French law

Thank you, Catherine, for this explanation.

It sounds like the Cour de Cassation only wanted to make sure that copyright terms did not shrink when France adopted the Term Directive.  That means that I can imagine several possible dates before which all non-posthumously published French works must be in the public domain:

A.  If someone "died for France" in 1914, he/she would receive a 100 year copyright term:  Life of the author + 70 years + 30 years extension.

B.  Can someone "die for France" prior to WWI?  If someone could "die for France" in 1911, those works would still be copyrighted (life + 70 + 30).  That would mean that any non-posthumous published work of an author who died before 1911 must be in the public domain.

C. Do such works also receive the WWI extension of 6 years plus either 83 or 152 days?  If that is the case, then sounds like a work for an author who died in 1907 (if "A" above applies) or 1903 (if "B" above applies) could still be protected by copyright.  (I don't even want to think about how to apply days of copyright protection...)

If A or B is the right answer, then my earlier suggestion that all non-posthumous works published by authors who died before 1911 are in the public domain everywhere in the world still stands.  If C applies, then we may have to move the date backwards.

There are of course works that were published later that are also in the public domain, but it looks like life + 100 (and maybe longer) is the cutoff below which we can say that all non-posthumously published works warrant the CC Public Domain Mark (since that is to be used "for works that are free of known copyright around the world").

Peter

-----Original Message-----
From: pd-discuss-bounces at lists.okfn.org [mailto:pd-discuss-bounces at lists.okfn.org] On Behalf Of Jasserand, Catherine
Sent: Thursday, March 10, 2011 4:47 AM
To: 'Public Domain discuss list'
Subject: Re: [pd-discuss] PD help-French law

Exactly.

French law (Code de la propriété intellectuelle) contains three provisions extending the term of protection for works published during WWI and WWII as well as for works whose authors "died for France" during the WWs. These articles were not repealed by the Parliament when it implemented the Term Directive into French law. However, two decisions of the Court of Cassation (27.02.2007) have excluded the extension of terms of protection under the condition that the new term of protection does not shorten longer terms of protection that would have started before 1 July 1995. It seems according to this ruling that musical works, which were benefitting from a longer term of protection (70 years p.m.a. instead of 50 years p.m.a) before 1 July 1995 should still benefit from extensions due to wars.

Is it the reference you are looking for?

If you need more details, I can provide a short memo that I wrote on this (with different hypotheses) as well as the decisions of the Court of Cassation.

Kind regards,
Catherine Jasserand

IViR

-----Original Message-----
From: pd-discuss-bounces at lists.okfn.org [mailto:pd-discuss-bounces at lists.okfn.org] On Behalf Of Peter B. Hirtle
Sent: woensdag 9 maart 2011 23:02
To: Public Domain discuss list
Subject: Re: [pd-discuss] PD help

Wasn't there a recent French court case that said that the European harmonization directive superseded the French extensions for authors who were "mort pour la France"?

Can someone who knows duration in France speak to this?

Peter Hirtle

-----Original Message-----
From: pd-discuss-bounces at lists.okfn.org [mailto:pd-discuss-bounces at lists.okfn.org] On Behalf Of Andrew Gray
Sent: Tuesday, March 08, 2011 5:56 PM
To: Public Domain discuss list
Subject: Re: [pd-discuss] PD help

On 8 March 2011 22:29, Alberto Cerda <alberto at derechosdigitales.org> wrote:
> Mmmm.... I think the Mexican copyright law provides protection to
> copyright holder for the author's life plus 100 years. To my
> knowledge, that is the longest term, but, unfortunately, I do not know since when that terms apply.

There's an interesting detail in French law which provides that any author killed in wartime is given a thirty-year copyright extension, at least since 1914 or so. (It is apparently a bit variable in detail, thanks to EU harmonization, but there's definitely some potential for
life+up-to-100 cases).

http://www.celog.fr/cpi/lv1_tt2.htm (Art. L.123-10)

I'm not aware of any other country which has a similar provision, but it's quite possible there are some.

--
- Andrew Gray
  andrew.gray at dunelm.org.uk

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