Harmonization of IP Law

Mary Brandt Jensen <cnicopy[_at_]sunset.backbone.olemiss.edu> writes:
>
> Because there are a number of such fundamentally different assumptions
> which have major impacts on ip policy, I don't think true global
> uniformity of ip law is possible or even desireable. I think we have
> to settle on uneasy compromises that will allow us to do business in a
> reasonable manner and agree to disagree on our fundamental assumptions.
>
> I wish I could convince the world ip community of the existence of these
> fundamental differences and the wisdom of not seeking too much uniformity
> under the guise of harmonization. The very word harmony, implies that
> differences do exist, perhaps even fundamental and major differences.

I fully agree with what Mary says. I would only elaborate that "harmonization" is not only a guise for achieving a pseudo uniformity. It is often even more a guise for simply strengthening IP rights at the expense of the general public and future creators who would build on what otherwise would be in the public domain. We see this most forcefully in the proposals to extend the copyright term of protection.

"Harmonization" in Europe did not go in the direction of the socially optimal term. There was no discussion of that issue in Europe whatsoever. Rather, it went simply to the longest term of any member of the EU (Germany, at life + 70, which term was itself, as I recall reading somewhere, the result of a political compromise that had nothing to do with a "fair" term of protection under any of the extant philosophical bases of IP law).

Supposed "harmonization" of the US term that of Europe is even more blatant. For works published prior to 1978, the can never be harmonization of terms with Europe, because our term is a fixed number of years from publication (now 75 and proposed to go to 95), while Europe's has long been 50 years after the death of the author (now 70 years). The proposed extension of the US term for works created before 1978 but published after 1978, is one of the greatest examples of DISharmony exacerbated by term extension. Consider the recent discovery of an unpublished work by Louisa May Alcott, written around 1850. If it is published prior to 2003, it will be protected under current law until 2028, and until 2048 if the extension bills are adopted into law. I do not know when Louisa May Alcott died, but even if she lived until 1900, all of her oeuvre went into the public domain in Europe by 1950, including this recently discovered work. Yet this work would remain protected in the US for nearly a century longer. Whatever that is, it is not "harmonization"!

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu
Visit the "Opposing Copyright Extension" web page at <http://www.public.asu.edu/~dkarjala> Received on Wed Jun 11 1997 - 21:06:01 GMT