How our current copyright systems deter creation

The main goal of both French and American copyright laws is to encourage and foster creation and innovation. However, our current copyright systems make it harder and harder for creators to publish their work on the internet without infringing the law. One of our legal copyright fragilities is the duration of the copyright protection, especially when the work can be considered to be part of the public domain.

A recent example that happened on January 2012 in France is a great illustration of this unfortunate issue.

Francois Bon, a French writer decided to adapt and modify the original French translation of Jean Dutourd of “the old man and the sea” of Hemmingway because he thought that it was outdated and not available online. His publisher Publie.net published an online version of his book.

However, the publisher Gallimard claimed that he owns the copyright rights on all the French translations of “the old man and the sea” of Hemmingway and required Bon to withdraw his book from the market, which he did.

The main issue in this controversy was the duration of the copyright. Indeed, a few days before Bon published his e-book the original Hemingway’s book became part of the public domain in Canada (where the copyright protection extends to 50 years after the death of his author which happened in 1961).

However, the situation is very different in the United States and in France.

When Hemingway published his book “the old man and the sea” in the United States in 1952, the copyright laws extended to 28 years after the publication of the book (until 1980). The copyright protection was renewed in 1980 and at that time, the protection was for additional 67 years (until 2047). This means that Hemingway won’t be part of the public domain until 2047 in the U.S.

In France, the copyright protection lasts during the author’s life and 70 years after his death (until 2032 for Hemingway). However, the article L.123-12 of the French intellectual property code explains that the duration of the copyright protection must be the same as the one granted in the author’s country (here the U.S) provided that it does not exceed the French duration. This means that even if the US copyright attached to Hemingway’s book “The old man and the sea” remains until 2047, his work will fall within the public domain in France in 2032.

This example clearly illustrates the problem of copyright interoperability around the word and how creators can be prevented from publishing their work because of the current rigidities of our copyright systems that need to be reformed. The public domain is truly one of them.

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