Implementing copyright revocation in Ireland and Malta: lessons for lawmakers

Joshua Yuvaraj is a senior lecturer in Auckland Law School, University of Auckland, New Zealand. Article 22 of the European Union’s (EU’s) Copyright in the Digital Single Market Directive requires EU Member States to permit creators to revoke copyright grants if there is a ‘lack of exploitation’ of the works. These types of provisions can help creators remonetize and increase the availability of works that may have gone dormant, especially in the context of concerns about imbalanced bargaining relationships between creators and publishers. In recent years, proposals for such laws have emerged in Canada, South Africa and the UK, while pre-existing reversion laws in the USA have caused high-profile disputes between artists, record companies and movie studios. Policymakers in these and other countries considering implementing or amending reversion laws will benefit from careful consideration of how reversion is being implemented and used elsewhere. To that end, this article evaluates the implementation of Article 22 in Ireland and Malta (given their similar lack of previous reversion laws and common law heritage). It identifies positive elements of the Article 22 transposition in those countries, while also highlighting issues with the substance and procedure of their transposed reversion provisions. This article then draws broader normative lessons from this analysis for policymakers considering implementing or amending reversion rights in their copyright laws. Artists, musicians, writers and other creators can be required to make lengthy and broad copyright grants to exploiters (publishers, record companies, etc) to have their works disseminated, with all this being a feature of significantly unequal bargaining power across different creative industries.1 As a result, if a work is not adequately exploited, the author cannot benefit from its dissemination and the public may not have straightforward access to it. One response to this is to enable creators to regain rights from exploiters in various circumstances, such as non-exploitation or the expiry of a time limit. Such rights can help achieve reward and access rationales: giving creators new opportunities to exploit their works (where they might otherwise not have been as well rewarded for their creative labour) and allowing greater access to works (which might otherwise have been unexploited, for example, after a book’s initial print run).2 These rights can also help redress power imbalances between creators and exploiters, which takes on added importance given the increasing concentration of power in large, worldwide companies in the book and music industries.3 Copyright laws have long-featured reversion rights. The 1710 Statute of Anne featured a two-term copyright system whereby after an initial 14 years, ‘the sole right of printing or disposing of copies’ to the author for a 14 if the author that As of the Copyright of copyright to an after their a that to and in and to those in other Copyright reversion also been the of high-profile disputes in the as creators of works to the of their copyright reversion rights in the Copyright rights in a of the and have to across the European the Copyright in the Digital Single Market Article 22 requires all EU Member States to creators to revoke grants or of rights if is a lack of of work or other In recent years, reversion laws have also been in the implementation of reversion South Africa Copyright a reversion which been the in of which to to and the right for creators of and works and rights have also been in of copyright laws in New and These that reversion rights have been and to be as for creative is for policymakers considering reversion proposals to the of other from their their policymakers in countries the UK, New South Africa and Canada, the recent implementation of Article 22 in Ireland and Malta a and for such consideration their copyright laws similar to those countries in reversion rights a To that end, of this article the of Article 22 and is to Ireland and Malta as The article then evaluates how those rights implemented in broader normative for policymakers in The EU Directive to and the copyright while a of of copyright and One of the to imbalanced relationships between creators and or other and for The Directive various to be implemented in Member States to this and for rights and of to creators creators to and their initial to all the from the of the works or and an to disputes about and As of this of Article 22 requires Member States to permit creators or to in or in the or the of rights there is a lack of of that work or other in the context of of The Directive that to non-exploitation in such creators from to to exploit their works or Member States may on this such as allowing for to of if the on a bargaining Article of the Directive requires Member States to that with be in to and not Article This can of the transposed that Member States to provisions to those on a bargaining Article 22 is the new reversion be that there a reversion for rights in and the Directive in which for such rights from to after a a in the of if ‘the not of the for in or not make to the or in such a that of the public may access from a and a time this in its especially to the of Article which to all works and other Member States have implemented Article 22 their the time of Ireland and countries used to the EU countries rights in recent previous of their copyright implementing Article 22 be to in countries the UK, Canada, South Africa or New a as be the in EU Ireland and Malta have not been the of in of their Article 22 there have been the implementation of of the Directive in and the implementation across the EU on these countries the author the time of these is to these Member States as for how reversion be implemented and also in the context of a of the Directive is its in EU Member is to these Member States as of this article various issues from the implementation of Article 22 in their copyright how Article 22 been implemented in Ireland and considering the substance and procedure of issues to the and works the issues to how can be the time that a to This in which the and or to Article and The is how the of a ‘lack of exploitation’ from Article 22 been The the exploitation’ as the for creators can revoke copyright while the and Article 22 the ‘lack of is for this in the which is Ireland to that to as as the of the To the between the and Article 22 is is to the Directive and its a ‘lack of exploitation’ in Article 22 works have not been been be the that works or that have been or not those rights have been on an and cannot to to exploit their works or This to is not that Ireland as works not been in this is not with how other have ‘lack of exploitation’ in Article in on the EU for a broad the of the In the of which to works and that the lack of not be as lack of also as on the of the or the of the to in the of the work or which the to in the for of a of of a work different a of Article not the in that of that the of the right is not in the is that lack of exploitation’ in Article 22 is to be on a of of to be the Member States how of a book or a to of a as to a there or be a of the of a of a book the of the to to a the of a in while the not in the in the lack of in a movie or in there is a to a lack of of the the Member States might to to the of a of a in and in different of to be the or This is with the and the European Copyright in a on the is on this that in its Article 22 not permit for and that Member States to and the to creators revoke copyright grants rights been The Directive the right to revoke the for lack of of the work or This not from a and the right the is or not the of the In such a the or to or of to the to the of the the of the the of that with an that ‘the other that the Directive requires the right be there is a of This with which a which a for of the for and the to to to to exploit their there is 22 is not The to be on of non-exploitation Article on this have also been creative In a in which music in about their to the various provisions of the about the for of might be and from a music the of to be in and for the on the EU Directive also Article 22 as to a the European and the European the of European and the of in is with the about the of Article 22 being for a broader of as is in in Member The analysis that the required the ‘lack of exploitation’ in Article 22 to be to different in and that the Directive to permit in the of The that can a to adequately exploit works. 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Ireland and Malta different to the time which reversion can be and the which creators required to to Article 22 requires Member States to a which creators cannot the Member States that the for in may be after a time the of the or the of rights this not a this It creators to from that they not have time to exploit the rights to creators to such disputes the system or this to the of bargaining power that Article the other to similar with the for creators to to in of works which not being adequately exploited, as they an which the of the or rights is to the they significantly time they have been on can the The of about these may creators from their rights. 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The implementation may also be with the and the of the in to the of works. that a to with a to a lack of the author or in may to revoke the or of in or in or its the to the for its This is on be to the Copyright there to be a may to revoke an rights or to the Copyright the Copyright to make the the to revoke the of a or to make a Copyright is in the context of the of the of grants in works to the Copyright (which with allowing for provisions for the as the can ‘the of all and the of the an author or to a to as ‘the to in the in the context of or which that and right for have the is not an be while the of that is the in the of for the Copyright to have the on rights can be or their In with the Directive in the context of works of is in this This is the of Article 22 not to a a or the of of a copyright In a of Article 22 to the of the author or may revoke in or in the or the of rights there is a lack of of that work or other Member States may that or can to the of the of the or of the The that the is to the to revoke the copyright and the to the of a to a is to the of the in Article if that not Article 22 of the Directive not permit a to the of the be as being to the of a if the of a or which a Member is to the that creators be to benefit from a for the of rights and that and be to the right of in with This be with the on the of the which that EU Member States ‘the of and as to implementation is to the this of procedure not with the and of the the of the Directive Member States to have a creators of they have an to that in the of Article It make to the right to the for in Article there is of in Article in the context of creators being in is to enable creators can revoke their copyright grants or the of those grants ‘the of and of be and of the system be that that the of be to and after a of time the of the or of the in the of Article or the of the Directive that these in the context of of rights grants in a not to Article 22 of the Directive to the required not permit the of copyright grants for works or the of their Policymakers in Malta the to Copyright for these from As in Ireland and of Article 22 in their copyright issues which be to the to the of the EU also have to countries considering implementing or amending reversion of the This lessons policymakers can from how Ireland and Malta have implemented Article is to make to the law is being to the and to the for and which the and to have public the they their for the transposition of the EU Malta the of Ireland not that the author not about how example, on the and is not how the their for example, the to the provisions and not to on a to and the of the to time and Copyright of the of copyright grants for works the and of Article These issues be implementing reversion rights other in to enable EU to be implemented in an the of to EU ‘the lack of and public about a lack of and to and a in implementing EU in also that to the to and is a of implementing a As the also the to the Directive as be used for of reversion law as as the for the is to and public policymakers that the of various This how the of ‘lack of exploitation’ in Article 22 to the Member States to As an of ‘lack of exploitation’ that is with the not to of considering a of reversion right then that there of and creators may be to their rights they not the and of a or not their been concerns in to they have a to exploit the works a to a lack of to countries work to that there about and how can be may be to in that in with all and and as to in of of such to for example, in and work be to such across different work be of a broader analysis of the of the as been These not to policymakers with the to the in creative and to those be for example, in to or works be for to to or their of a copyright an the for Copyright of in to or works help to the of all Policymakers that there in reversion how the of creators to revoke grants in works be a Copyright to the of that this with that on the imbalanced bargaining of creators and in to grants of rights. creators to the time and of to they may be from those is to that is (where creators can their for example, giving or (where rights to for example, after a of this that policymakers to with Article 22 of the Directive (which this may not from This can be in a recent which the a system creators to copyright grants after of time One of the that the with the Copyright in to to other types of This is to of the law that to example, a lack of on the right and for the Copyright This that the law is not or a right may not be to not to rights to policymakers that the law in and is as as to that there for this will the of The Copyright and of etc) a requires of in the author or their the to their rights or such to the of the which be not after of the The and those in the which the for to they have not been with is the is given of in which policymakers be of is to of reversion The of allowing of in the of the for to in This is not a feature in the which in in that provisions a feature of their the power imbalances the provisions of the Directive to countries to rights a to rights can help redress and imbalances in creative such provisions be to that creators can the rights to To that end, policymakers considering reversion benefit from considering how been implemented elsewhere. The recent of Article 22 of the EU Copyright in the Directive in Ireland and Malta on reversion implementation for countries Canada, South Africa and the given their of common law and to those countries in or reversion rights in recent copyright analysis of Article implementation in Ireland and Malta not positive elements also for The from the of the Directive on the highlighting the lack of on the of non-exploitation that will the reversion right the importance of a that the of It also not on the of example, in to which have been to the of the the in of can be there is a lack of on how those The also to the power of creators to revoke copyright grants to those to the Copyright for The issues benefit from policymakers in Ireland and Malta to their copyright the Article 22 of the Directive in a that the This analysis lessons for policymakers considering implementing new reversion rights or the and for such provisions be and to enable and of reversion law be implemented in to enable can be for as to reversion can be there be as to the in which reversion and be policymakers that there to reversion the of a or the to of reversion in creators to these rights being or the of provisions in and EU Directive on Copyright in the and in the an author or a or or rights in a work or other on an the author or may revoke in or in the or the of rights there is of that work or other The right of for in may be after a time the of the or the of the rights. The author or to in the to the rights have been or and an which the of the or rights is to and after the expiry of the to in to the of the of the or the of the rights. not if the lack of is to that the author or the can be to of and rights in the the author or or or rights in a work or other on an the author or may revoke in or in the or the of rights there is a lack of of that work or other for a of that the author or in of a a of not which the of the or rights the or that in the of the time a not be the or to exploit the rights which the time the author or in may to revoke the or of in or in or its the to the for its In the of works of or the to in the may be author or right to or not to revoke the or of rights in or to its as the may the a which all other or right may make their to or of as the may not in the of works or or in the that the lack of of the work or other is to the that the author or the can be to or with to from the these of which in of the of the and of for the of Copyright

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