The duration of copyright protection has always been a central issue in copyright protection. Since the very emergence of copyright protection, it has been settled that the term of protection must correspond with the author’s life. Later, the term of protection was extended beyond the author’s life. In the early 20th century, the term lasted merely 10 years after the author’s death. Towards the end of the century, in most European countries, members of the European Union, the term of protection lasted for 70 years following the author’s death.
International law and EU law.
The principle stipulated by the Berne Convention’s final revision is that “The duration of the term for copyright protection provided by this Convention is the life of the author plus at least 50 years after their death”. It further provides for the cases of works published anonymously or under a pseudonym and the term of protection of works of photography and applied art. The terms of protection under the Convention, in all cases, enter into force as of 1 January of the year following the author’s death, or the time it became public, or another event defined in a special hypothesis of the Convention.
In accordance with the TRIPS Agreement, ” Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making”. This agreement does not oblige Member States to apply more comprehensive protective measures in their legislation.
By 1 July 1995, all EU Member States had implemented Council Directive 93/98/EEC of the European Union
of 29 October 1993 harmonizing the term of protection of copyright and certain related rights into their legislations. For the purpose of the internal market’s easy functioning, Member States’ legislations should be harmonised in such way as to ensure that the terms of protection are the same in the whole Community, by defining uniform rules for their calculation. This is necessary due to the different approaches to calculation of the starting date of the term of protection under the Rome and Berne Conventions. Under the Rome Convention, the term of protection is computed from the end of the year in which the fixation of a phonogram, a performance or broadcast took place. The Berne Conventions considers the starting date to be 1 January of the year following the event that has made the work available to the public. Thus, in order to accomplish its goal of maximum harmonisation of the EU Member States’ legislations, Council Directive 93/98/EEC stipulates that harmonisation should refer not only to the terms of protection, but also to certain provisions regarding their implementation, such as the starting date of every term. The minimum term of protection under the Berne Convention was designed to protect the author and the first two generations of his descendants (50 years following the author’s death). The average life expectancy in the Community, however, has increased to such an extent that this term has become insufficient to cover two generations and satisfy the purpose of the law in place. The Berne and the Rome Conventions only establish minimum terms of protection of the rights referred to under them, while granting contractual parties the freedom to provide longer terms. Some Member States have exercised this right, directly granted to them, while others have not joined the Rome Convention at all. Council Directive 93/98/EEC aims to lay the foundation of a long-lasting harmonisation that will facilitate the free movement of goods and the freedom to provide services in the internal market. At the same time, the harmonisation of the terms of protection of copyright and related rights cannot cause reduction of the protection, which rightholders in the Community have enjoyed up to date.
In accordance with Article 1(1) of the Directive, the rights of an author of a literary or artistic work 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. This provision is introduced to the Bulgarian CNRA by the General Rule of Article 27(1).
Duration of copyright.Regulations in CNRA
The entire Chapter 6 of section II of CNRA regulates matters related to the duration of copyright. According to Article 27(1) of CNRA, copyright shall be protected for the life of the author and seventy years after his death. From the act’s adoption in 1993, to 2000 the regulation in place defined the duration of copyright to be the life of the author and 50 years after his death. The amendment in 200073 introduced a longer term of protection, similar to that in the majority of Member States, namely the life of the author and 70 years after his death.
In accordance with § 6 of TCP of CNRA: “This Law shall also apply to works, performances, phonograms, radio and television programmes made or performed prior to the entry into force of this Law unless the respective protection periods have expired”. This provision, however, gave rise to more confusion rather than clarity on the matter of copyright’s temporal aspects. The interpretation of § 6 of TCP was brought before the Supreme Court of Cassation regarding a legal dispute about which law exactly is to be concerned with the terms’ expiry. The shorter, 50-year term of protection, provided in the law on copyright in force from 1972 to 1993 when the current law or regulation was adopted, requires that the longer, 70-year term of protection has expired as of the date of amendment of the current law. According to the Supreme Court of Cassation, “CNRA applies to works created prior to its entry into force if the terms of protection provided for in CNRA and relevant to these works have not expired.” This interpretation corresponds with the meaning and purpose of the newly enacted law, the duration of copyright protection for all works established by this law, and the purpose of preserving copyright acquired prior to CNRA’s entry into force, on account of the provision’s systematic place in § 6, paragraph 2 of TCP of CNRA and its reference to paragraph 1 of § 6″. Some of the works created before 01.08.1993 that enjoy the shorter duration of copyright are eligible for protection until the expiry of the term provided for in CNRA, both in the case where the term
of protection under the Law(old) has not expired, and in the case where the term of protection under the Law (old) has expired, but in the latter case, the term of protection laid down in CNRA’s regulations, i.e. the longer term of 70 years, must not have expired.
In view of the fact that the duration of copyright is corresponds with the European Union’s terms of protection, provided for in Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, SCC rules the following: “The provisions of §6, paragraph 1 of TCP of CNRA must be interpreted in the sense that CNRA applies also to works, performances, phonograms, radio and television programmes which were created or took place prior to its entry into force on 01August 1993, provided that the terms stipulated in it have not expired, i.e. terms of protection under CNRA”.
§6 of TCP of CNRA should be understood as meaning that the 70-year term of protection after the author’s death must not have expired as of 5 May 2000. The aforemention applies to both copyright and its neighbouring rights.
Duration of copyright in works disclosed anonymously or under a pseudonym.
Copyright in works disclosed anonymously or under a pseudonym shall expire after seventy years following the work’s first communication to the public. If the author’s identity is disclosed within this term, or the pseudonym raises no doubts as to his identity, the general rule, 70 years after the author’s death, shall apply.
The Berne Convention stipulates that the term of protection of anonymous or pseudonymous works shall expire fifty years after the work has been lawfully made available to the public. In any case, when the pseudonym adopted by the author leaves no doubt as to his identity, or the author discloses his identity after publication of the work, the general rule of the Convention shall apply – the term of protection shall be 50 years after the author’s death. The Berne Convention does not oblige the countries of the Union to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years.
In pursuance of the established objectives, Council Directive 93/98/EEC 74 extends all terms of protection and provides that the protection of all anonymous or pseudonymous works shall be 70 years after the work has been lawfully made available to the public. If the author discloses his identity or there are no doubts as to his identity, the term of protection shall remain the same, however it shall begin on the first of January of the year following the death of the author.
In case the work has not been disclosed within 70 years of its creation and its author is unknown (hence, date of death cannot be determined), work’s copyright protection shall be terminated.
The law permits any person that discloses a work after expiration of its copyright, if the work has not been published until then, to exercise all property rights in the work. This right shall expire 25 years after the first of January of the year following the year in which the work was disclosed.
After expiration of the duration of copyright, works may be used freely provided that perpetual moral rights are not infringed. These rights are the author’s right of indication of his name, pseudonym or other identifying mark whenever the work is used, and the right to preserve the work’s integrity and oppose any modifications made to it. Every legal subject must refrain from actions that may be prejudicial to the author’s legitimate interest.
Duration of copyright in works created by two or more authors
When a work is created by two or more authors, the term of protection is deemed to begin after the death of the last surviving author. The term of protection of musical works with lyrics or dramatic musical works shall expire seventy years after the death of the author who was deceased later between the music’s and the lyrics’ authors, irrespective of whether these persons are designated as co-authors, when the lyrics and the music were created to be used together.
The term of protection of films or other audiovisual works shall expire 70 years after the death of the last of the following persons to survive: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the film.
Copyright in encyclopedias, periodicals, collections, anthologies, bibliographies and the like which comprise two or more works or materials shall expire seventy years after their disclosure. If the author is identified during this period, the general rule shall apply – copyright shall expire seventy years after the death of the author. When volumes, parts, editions or episodes of a given work are published separately, the term of protection shall be calculated separately for each of them.
Duration of copyright in computer programmes and databases
Copyright in computer programmes or databases, which has arisen for the employer in connection with their creation under an employment relationship, shall expire 70 years after making the work available to the public.
