Rule of the shorter term
The rule of the shorter term, also called the comparison of terms, is a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment to not more than the copyright term granted in the country of origin of the work.
Fundamentals
[edit]International copyright treaties such as the Berne Convention (BC) or the Universal Copyright Convention (UCC) work through national treatment: signatory countries agree to grant copyright to foreign works under their local laws and by the same rules they grant copyright to domestic works. Whether a work is eligible to copyright, and if so, for how long that copyright exists, is governed by the laws of the country where copyright on the work is claimed.[1] The Berne Convention and also the UCC define only the minimum requirements for copyrights that all signatory countries must meet, but any country is free to go beyond this minimal common denominator in its legislation. This is most noticeable in the duration for which copyrights are upheld. The Berne Convention lays down a minimal general copyright term of 50 years beyond the death of an author (50 years p.m.a.).[2] But many countries have a longer term, such as 70 years p.m.a., or even 100 years p.m.a.
One and the same work may thus be copyrighted for different times in different countries (since, per lex loci protectionis, the copyright rules of each country apply within its jurisdiction, regardless of the work's country of origin). Its copyright may have expired already in countries with a minimum term, but at the same time, it may still be copyrighted in other countries that have longer copyright terms.[1] National treatment may thus lead to an imbalance: works originating from countries with minimal copyright terms are copyrighted longer in other countries that have longer copyright terms. In that situation, works from a country that goes beyond the minimum requirements of a treaty may already have entered the public domain in foreign countries with shorter copyright term while still being copyrighted at home.
In such cases, the rule of the shorter term makes allowance for reciprocity in exception to the normal national treatment. Countries with a long copyright term may apply only the shorter foreign term to works from countries that have such a shorter term.
| Protection in Country A (70 years pma) |
Protection in Country A (70 years pma, rule of shorter term) |
Protection in Country B (50 years pma) | |
|---|---|---|---|
| Works from Country A | 70 years pma | 70 years pma | 50 years pma |
| Works from Country B | Country B's 50 years pma |
Universal Copyright Convention
[edit]In the Universal Copyright Convention, the comparison of terms is spelled out in article IV(4)(a), which reads:
No Contracting State shall be obliged to grant protection to a work for a period longer than that fixed for the class of works to which the work in question belongs, in the case of unpublished works by the law of the Contracting State of which the author is a national, and in the case of published works by the law of the Contracting State in which the work has been first published. — UCC, article IV(4)(a).[3]
Addressing concerns of the Japanese delegation, the conference chair clarified that this subsumed the case of classes of works that were not copyrightable at all in their country of origin (as specified), as these would have a copyright term equal to zero. Thus other countries would not be obliged to grant copyright on such foreign works, even if similar domestic works were granted copyright.[4]
The application of article IV(4)(a) is not mandatory: "not being obliged to" is not equivalent to "being obliged not to".
Berne Convention
[edit]In the Berne Convention for the Protection of Literary and Artistic Works, a similar rule exists, but not for "classes of works" but considering individual works. Article 7(8) of the Berne Convention reads:
In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work. — Berne Convention, article 7(8).[5]
Again, application of this rule is not mandatory.[6] Any country may "provide otherwise" in its legislation. To do so, it is not necessary to include an explicit exception in the domestic copyright law,[7] as the example of the United States shows.
The Berne Convention also states in article 5(2) that the enjoyment and exercise of copyright
... shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. — Berne Convention, article 5(2).[1]
This specifies national treatment, and also makes the existence of copyright on a work in one country independent from the existence of copyright on the work in other countries (lex loci protectionis).
A WIPO study in 2011 recommended that «The difficulty of the rule of the comparison of terms applicable to the duration for protection, as provided by Article 7(8) of the Berne Convention, should at least be assessed».[8]
Bilateral copyright treaties
[edit]The terms of existing or new bilateral treaties may moreover override these conventions, as long as such bilateral treaties meet the minimum requirements of the conventions. This is defined in article 20 of the Berne Convention[9] and in articles XVIII and XIX of the UCC.[10]
Worldwide situation
[edit]| Countries and areas | Rule of the shorter term? |
|---|---|
| Afghanistan | No[11] |
| Albania | Yes[12] |
| Algeria | Yes[13][14] |
| Andorra | No, unless public domain in the country of origin on the date the transitional provision entered force.[15] |
| Angola | Yes[13][16] |
| Antigua and Barbuda | Yes[17] |
| Argentina | Yes[18] |
| Armenia | No, unless public domain in the country of origin on the date article 45 entered force[19] |
| Australia | No, except for "Published Editions"[20] |
| Bangladesh | Yes[21] |
| Belarus | Yes, while party to Berne Convention[22] |
| Berne Convention signatories | Yes, unless specified by signatory's legislation[23] |
| Bhutan | Yes[13][24] |
| Brazil | No[25] |
| Canada | No.[26] Before 2022, it was implemented for works of joint authorship with an exception for countries party to the Canada–United States–Mexico Agreement, i.e. U.S. and Mexico.[27] |
| China (People's Republic, Mainland only) | No, unless public domain in the country of origin on the date of commencement of the Act[28] |
| Colombia | No[29] |
| Democratic Republic of the Congo | No[30][31] |
| Dominican Republic | Yes[32] |
| European Union members (to the extent that uniform) | Yes (with exceptions; only towards non-European Union members)[33][34] |
| Guatemala | Yes[35] |
| Guinea-Bissau | Yes[36] |
| Honduras | Yes[37] |