Copyright term, film labeling, and film preservation legislation : hearings before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 989, H.R. 1248, and H.R. 1734 ... June 1 and July 13, 1995 (1996)

660 suit for infringement''" Moreover, such works could be uploaded on the Internet in the US and distributed to jurisdictions in which the copyright is still protected, resulting in copyright infringement in, eg, Europe by a defendant that is difficult, if not impossible, to trace?' Further, EU rightsholders will most certainly suffer losses from more conventional means of importation of the products from the US into the EU, where royalties should be paid Will the US companies employing US prior works protect the EU rightsholders in these circumstances'' Clearly the bifurcation of copyright duration between the EU and the US creates problems, both for persons wishing to utilize in subsequent works pre-existing works, and for the rightsholders whose European rights may be diminished as a result of distribution of such works in the US. As discussed in the introduction, all EU countries are required to implement the new 70 years p m a. duration provision of the EC Term Directive Under Phil Collins, no EU country may discriminate against nationals of other EU countries Moreover, under the EC Term Directive, no prejudice by application of the rule as between EU countries would result because the duration for all countries will be harmonized to 70 years p. ma. Therefore, all works created by EU nationals, regardless of the country of first publication, will be accorded copyright duration of 70 years p. ma Works created by U.S. nationals that are first published (as defined in the Berne Convention) in an EU country and not published in the US within 30 days of such publication would receive the 70 years p. ma. term established in the EC Term Directive, as will works by US citizens who are habitually residing (or domiciled) in an EU country, regardless of where the work was first published. However, works first published outside the EU, and works simultaneously published in an EU country and in the US. or other shorter-term Berne country that are created by US nationals will receive rule of the shorter term treatment in EU countries. Therefore, those works will cease to be protected in the EU upon the expiration of their US (or other shorter-term) copyright The result of the EC Term Directive is an exaggeration of the extant prejudice which ''individual copies of pre-€.\isling works are not protected as deri\aii\e works unless such copy contains "originality." 1 Nimmer. supra note 15 at J 2 OSIC). ike also. G Oppenhcinier. "Originality in Art Reproductions 'Vanations' in Search of a Theme." 27 Copyright Law Symposium 207 ( 1982) (discussing \arialions from original works necessar> lo qualify art reproductions for separate copyright). Accordingly, if a public domain painting, for example, is reproduced in digital form on a CD-ROM, copying of such indi\ idual work may nol be enjoined as a copynghl infringement since the copy of the work is nol a proicctible work ofauthorship. and ihc original work on which the copy is based is in the public domain Original work added lo such compilalioiis. such as commeniary. interactive search programs, elc would likely be proleciiblc under copyright, as may ihe compilalion as a whole. '"See generally. P Samuelson. R Glushko. "IniellecUial Property Rights for Digital Library' and H\pcnext Publishing Svsienis." 6 H \j«\ J.L & Tech 2.^<7 ( l«;9.".) 18