Copyright and Related RightWord格式文档下载.docx

1、 3.07（TREATISE）Licensing of Intellectual PropertyJay Dratler, Jr. FNaCopyright 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 20052006 ALM Properties, Inc., Law Journal Press（R）, a division of AmericanLawyer Media, Inc. New York, New YorkChapter 3. Copyright and Related Rights 3.07 Duration o

2、f Protection for Copyrights and Related Rights1-Applicable International and Regional Provisionsa-CopyrightsSignatories of both NAFTA and TRIPS have agreed to protect copyrights in accordance with certain portions of the 1971 Paris Act of the Berne Convention, excluding Article 6, the moral rights p

3、rovision. FN1 The Berne Convention mandates a minimum copyright term of fifty years beyond the authors lifetime, FN2 but allows signatories to provide longer terms of protection. FN3 First the European Union FN4 and later the United States FN5 have chosen to grant a term of life plus seventy, althou

4、gh different rules apply in the United States to works created during earlier iterations of the copyright law. FN6Both TRIPS and Berne adopt the national treatment standard, subject to the Rule of the Shorter Term, FN7 which provides that governments are not required to grant a longer term of protec

5、tion to foreign works than the country of origin provides its own works. Hence, a work whose copyright has expired in its home country need not be granted protection in another country, even if the work would otherwise be eligible for protection in that other country. Although the Universal Copyrigh

6、t Convention incorporates the Rule of the Shorter Term, the European Union and the United States have eliminated it. FN8Under the provisions of the EU Copyright Term Directive, FN9 works by a single author enjoy copyright protection for a term of seventy years after the death of the author; for join

7、t works, the measuring life is that of the last surviving author. FN10b-Neighboring Rights and Related RightsIn connection with neighboring rights for performers, producers of phonograms, and broadcasting organizations, TRIPS refers to, but does not mandate adherence to, the Rome Convention. FN11 TR

8、IPS applies the national treatment standard only to those related rights specifically granted under the TRIPS Agreement, not the broader provisions in the Rome Convention. FN12 Under European Union law, the duration of neighboring rights is as follows: for performers, the term is fifty years after t

9、he date of the performance; FN13 for phonogram producers, fifty years from fixation; FN14 for film producers, fifty years from fixation; FN15 for broadcasting organizations, fifty years from the first transmission, whether by wire or over the air, including by cable or satellite. FN16 The EU also re

10、quires a fifteen year sui generis right for databases. FN17Due to the lack of a clear distinction between copyright and neighboring rights under United States law, the United States is not a signatory to the Rome Convention. Because neither the United States nor Canada adheres to the Rome Convention

11、, NAFTA adopts the Phonogram Convention, not the Rome Convention, as its baseline for the protection of related rights. FN18 The Phonogram Convention, jointly administered by WIPO, UNESCO, and the International Labor Organization, FN19 authorizes protection under copyright or other specific right, u

12、nder unfair competition, or under penal laws, and permits compulsory licensing under certain conditions, including the existence of fair use provisions. FN20 The Convention requires a minimum twenty yearterm, FN21 and permits formalities as a prerequisite for protection under national law, provided

13、that such formalities are satisfied by use of a prescribed copyright notice （containing a P in a circle）. FN22c-Moral RightsMoral rights include the right of authors to have their work attributed to them and no one else, the right to maintain the integrity of a work by preventing others from alterin

14、g it, the right to publish or withhold a work from publication, and the right to withdraw a work from distribution. FN23 In some countries, moral rights are perpetual, inalienable, and imprescriptible. FN24 The European Union does not prescribe the term of protection for moral rights among its membe

15、r states. FN252-United States LawBecause most amendments to United States law have not had retroactive effect, FN26 the duration of a United States copyright is, with rare exceptions, determined by the 1909 FN27 or 1976 FN28 Copyright Act as amended at the time the work was first protected in the United States. However, because retroactive effect has been granted in the extension of subsisting copyright terms and in restoring copyright protection to foreign works that had fallen into the public domain for failing to comply with then-applicable formalities and subject matter