The Termination Right and Authors’ Human Rights

Posted October 18, 2017

We are delighted to feature the following guest post by Professor Graeme Austin of Victoria University of Wellington (NZ) and Melbourne University (Australia).

Headshot of Graeme AustinIf people think of “international copyright law” at all, they probably think of the IP chapters in international trade agreements.  These agreements are mostly about economic links between groups of countries. Protecting copyrights, along with other kinds of IP, is the quid pro quo for access to commodity markets and markets for services.  The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) brought copyright squarely into the world trade regime with the requirement that World Trade Organization members must protect copyrights up to certain minimum standards.

But there’s a whole other side to the rights of authors that many people don’t know about: international human rights law.  In 1948, the Universal Declaration of Human Rights (UDHR) announced: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” A similar guarantee appears in the American Declaration on the Rights and Duties of Man (1948). Authors’ rights are also included in the International Covenant on Economic, Social and Cultural Rights, which came into force in 1976.  “Material interests” means financial support: the ability to earn an income from creative work.  “Moral interests” spring from the emotional and spiritual connections between creators and their works. They can be given force through legal prohibitions against subjecting works to certain kinds of derogatory treatment or prohibitions against failing to name the author of a work when it is released to the public.

The UDHR begins: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world… .”  The UDHR thus links authors’ moral and material interests to human dignity – which is the case with all human rights.

When thinking about authors’ rights, we’ve tended to neglect the international human rights dimension.  A country’s failure to live up to its IP obligations under TRIPS, for example, can lead to trade sanctions or fines.  For policy makers, this is likely to focus the mind rather more sharply than embarrassment about failing to protect authors’ human rights.  Sanctions for breach of authors’ human rights do not have the same bite.

Authors’ human rights are not helped by the widespread suspicion of copyright protections in international economic law, such as TRIPS – and the prevailing sense that these benefit only large corporations in IP-rich countries.  Nor are they helped by the inaccurate claim that intellectual property rights are human rights.  They are quite separate, as the UN Special Rapporteur in the field of cultural rights, emphasized in an important speech to the European Parliament in 2015.

Even so, both bodies of international law have important things to say about the rights of authors.  And, as the Special Rapporteur emphasized, copyright law sometimes falls short in protecting authors’ rights to the level required by human rights law. In a 2014 report to the UN General Assembly, the UN Special Rapporteur specifically mentioned the termination right as a useful vehicle for addressing the problem of authors’ unequal bargaining power.

Asserting authors’ human rights claims is likely to face the objection: “Aren’t copyrights powerful enough?” But this is to confuse authors with owners.  The human rights guarantees are directed at authors’ moral and material interests.  These do not necessarily align with the interests of copyright owners.

A good example is the December 2016 case in the High Court for England and Wales involving the band Duran Duran. The band members wanted to exercise their “termination right” under the United States Copyright Act 1976.  The termination right allows authors to reclaim their copyrights after 35 years from the date of originally assigning their rights.  Many authors will want to enter into more lucrative contracts, especially in a case such as Duran Duran, where the original contracts were for some of their most famous songs, including “Hungry Like a Wolf.”  Other authors might want to keep control their copyrights themselves, perhaps using creative commons licenses for future exploitation.

When creative people are at the beginning of their careers, they are often quite vulnerable.  Lacking bargaining power, they might be prepared to sign away their copyrights too cheaply. Aimed at protecting authors, the U.S. law provides that authors cannot sign away their termination rights.  This stops publishers from insisting that authors assign their right to terminate along with their copyrights.

Termination rights apply only to U.S. copyrights.  Because copyrights are territorial rights, even if an author terminates a contract, a publisher might keep the copyrights for every other country.

Unfortunately for Duran Duran, their contracts, under which they assigned copyrights for all the world, were governed by English law, and they included a clause in which they agreed not to exercise their U.S. termination right.  The judge held “not without hesitation” that the contracts meant that the Duran Duran band members could not terminate the grant of their U.S. copyrights.  You can read more about this saga here.

To be fair to the judge, he didn’t receive an especially full argument on all the relevant issues.  Even so, given the author-protective reasons for the termination right, it is very concerning that an author’s right to terminate can be obliterated by a publisher’s choice of English law to govern the contracts.

The English law of contract interpretation can be quite complex, especially in a case like this one, where the meaning of the terms was not always clear.  The Duran Duran band members secured leave to appeal the decision, and there are likely to be other cases like this coming up through the courts.

Courts sometimes rely on background legal norms when assessing the policy dimensions of difficult cases.  In future cases, we might hope that courts might think about the implications for authors’ human rights. The U.S. domestic policy is clear: the termination right was designed to protect authors.  This protection is also consistent with key international human rights guarantees.  In future cases, this should carry some weight.

Graeme W. Austin is Professor of Law at Victoria University of Wellington (NZ) and Melbourne University (Australia). His article, Authors’ Human Rights and Copyright Policy, discusses the issues raised in this post in more detail.