Misplaced Pages

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67-540: In the bill's latest form, the tax would have been a multiple-time affair, a sum of US$ 1 per work charged 50 years after the date of first publication or on December 31, 2006, whichever occurs later, and every 10 years thereafter until the end of the copyright term , only on works first published within the United States (as charging it from foreigners would violate the Berne convention except in some interpretations of

134-613: A Saskatchewan law. Although the law was passed long after Thatcher's murder conviction, the courts have ruled that such laws prescribe only civil penalties (as opposed to additional criminal penalties) and are thus not subject to Charter restrictions. Article 90 of the Constitution of Croatia states that "only individual provisions of a law may have a retroactive effect for exceptionally justified reasons". According to Croatian legal scholar Branko Smerdel  [ hr ] , this means that "a law cannot be applied retroactively as

201-403: A crime likelier than it would have been when the deed was committed. Conversely, a form of ex post facto law called an amnesty law may decriminalize certain acts. Alternatively, rather than redefining the relevant acts as non-criminal, it may simply prohibit prosecution; or it may enact that there is to be no punishment, but leave the underlying conviction technically unaltered. A pardon has

268-464: A crime that had only been legislated against. Largely, the executions were considered retribution for the assassination of the legislator, Deputy Seán Hales TD the previous day. The imposition of retroactive criminal sanctions is prohibited in the subsequent Irish Constitution , introduced by Eamonn De Valera , in Article 15.5.1°. Retroactive changes of the civil law have also been found to violate

335-625: A criminal offense under the law in force at the time the act was committed. And that no one shall be sentenced to a heavier penalty than the one that was applicable at the time the offense was committed. Generally, the Finnish legal system does not permit ex post facto laws, especially those that would expand criminal responsibility. They are not expressly forbidden; instead, the ban is derived from more general legal principles and basic rights. In civil matters, such as taxation, ex post facto laws may be made in some circumstances. Former Minister of

402-554: A decreased knowledge production on copyright term increases for the analysed context. As a curiosity, the work Peter Pan, or The Boy Who Wouldn't Grow Up is subject in the UK to a special clause in the Copyright Designs and Patents Act 1988 that granted Great Ormond Street Hospital a right to royalty in perpetuity. J. M. Barrie had gifted the copyright to the work to the hospital in 1929. The different copyright terms in

469-572: A nation with an entrenched bill of rights or a written constitution , ex post facto legislation may be prohibited or allowed, and this provision may be general or specific. For example, Article 29 of the Constitution of Albania explicitly allows retroactive effect for laws that alleviate possible punishments. Ex post facto criminalization is prohibited by Article 7 of the European Convention on Human Rights , Article 15(1) of

536-493: A paper on the impact of the copyright extension on the British Copyright Act of 1814 that "longer copyrights raise the costs of accessing intellectual assets for consumers and other firms, which may discourage the diffusion of knowledge and decelerate the pace of cumulative innovation and learning-by-doing ." In 2014 a Rock, Paper, Shotgun article about the existence of orphaned classic video games and

603-530: A sentence (whether imprisoned or on probation or parole) on December 15, 2004, were required to register, regardless of when their offense and conviction occurred. However, the registry was not retroactive to anybody who had completed their sentence by late 2004 and was not on the Ontario registry. Canadian courts have never ruled on the somewhat retroactive nature of the sex offender registry, since this seems to have never been challenged. Sex offender registration

670-656: A signatory of the European Convention on Human Rights and as a member of the European Union whose Charter of Fundamental Rights has the effect of law, any retroactive law could still be struck down. Retroactive criminal sanctions are prohibited by Article 2, Part 1 (Chapter 1) of the Criminal Code of the Republic of Lithuania . Retroactive administrative sanctions are prohibited by Article 8 of

737-500: A similar effect, except it applies in just one case instead of a class of cases. Other legal changes may alleviate possible punishments retroactively, for example by replacing the death sentence with lifelong imprisonment. Such legal changes are also known by the Latin term in mitius . Some common-law jurisdictions do not permit retroactive criminal legislation, though new precedent generally applies to events that occurred before

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804-716: A state. The law was used to punish Adolf Eichmann and others. Article 25, paragraph 2, of the Italian Constitution , establishing that "nobody can be punished but according to a law come into force before the deed was committed", prohibits indictment pursuant a retroactive law. Article 11 of preliminary provisions to the Italian Civil Code and Article 3, paragraph 1, of the Statute of taxpayer's rights, prohibit retroactive laws on principle: such provisions can be derogated, however, by acts having force of

871-619: A whole, and regulations enacted pursuant to statutory authority can never be applied retroactively". Following the liberation of Denmark from Nazi occupation in 1945, the Folketing , heavily influenced by the Frihedsråd , passed a special law (Lov Nr. 259 af 1. Juni 1945 om Tillæg til Borgerlig Straffelov angaaende Forræderi og anden landsskadelig Virksomhed, colloquially landsforræderloven (the traitor law) or strafferetstillægget (the penal code addendum)), temporarily reintroducing

938-842: Is a party to the International Covenant on Civil and Political Rights . The implementation of retrospective criminal laws is expressly prohibited by the Covenant. Australia is also a party to the Optional Protocol to the International Covenant on Civil and Political Rights . The Protocol enables individuals subject to the jurisdiction of a state party to file complaints with the United Nations Human Rights Committee for that state party's non-compliance with

1005-499: Is punishable without a pre-existing law, and that in the case an act was punishable but the law was changed after the criminal act the "most favorable" (to the suspect) of the two laws will apply. In Civil Law there is no such provision. Section 7 of the Interpretation Act 1999 stipulates that enactments do not have retrospective effect. The New Zealand Bill of Rights Act 1990 also affirms New Zealand's commitment to

1072-674: Is the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 in the state of Karnataka . The Indonesian Constitution prohibits trying citizens under retroactive laws in any circumstance. This was tested in 2004 when the conviction of Masykur Abdul Kadir , one of the Bali bombers , under retroactive anti-terrorist legislation was quashed. Ex post facto laws, in all contexts, are prohibited by Article 169 (Chapter 11) of

1139-439: Is the length of time copyright subsists in a work before it passes into the public domain. In most of the world, this length of time is the life of the author plus either 50 or 70 years. Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work (e.g. musical composition or novel ), whether the work has been published or not, and whether

1206-589: Is unclear. Historically there have been three exceptional instances when ex post facto criminal laws have been used in Finland. In France , so-called " lois rétroactives " (retroactive laws) are technically prohibited by Article 2 of the Code Civil , which states that: "Legislation provides only for the future; it has no retrospective operation". In practice, however, since the Code Civil does not have

1273-429: Is usually not a problem, but otherwise there is typically not a clear record of whether the original creator transferred the rights, died, or had a clear successor to its rights. The PDEA solves this problem by requiring a small tax to maintain copyright on a work. For works that the copyright owner no longer cares about, the copyright will lapse, and so copies and derivatives can be made freely. The Act would also require

1340-555: Is widely reported, the reaction to it in the House of Commons is hard to find – Ricketson reports that following Macaulay's claims that the heirs of certain authors would block publication of their works: At this point, the debate in the House of Commons fell into farce because there were claims by other speakers that they had no doubts (based on their own personal knowledge) that Richardson and Boswell 's descendants would still have done

1407-532: The Berne three-step test ). Failure to pay the Copyright Office the copyright renewal fee on or before the date the fee is due or within a grace period of 6 months thereafter would allow the work to irreversibly lapse into the public domain in the United States and other countries and areas applying the rule of the shorter term of the Berne Convention. However, if payments are made in time,

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1474-540: The Charter of Rights and Freedoms these rights are not absolute, and may be overridden. The Canada sex offender registry , which went into effect on December 15, 2004, is somewhat retroactive. When the registry was created, all offenders who were on the Ontario sex offender registry, which was created in 2001, were required to register on the national registry. In addition, sex offenders in all provinces who were serving

1541-641: The French Penal Code , except in cases wherein the retroactive application benefits the accused person (called retroactivity in mitius ). They are also considered unconstitutional, since the principle of non-retroactivity is laid down in Article 8 of the Declaration of the Rights of Man and of the Citizen , which has constitutional status under French law. The épuration légale trials held after

1608-996: The House Committee on the Judiciary . On September 4, 2003, it moved to the House Subcommittee on Courts, the Internet, and Intellectual Property. On May 17, 2005, it was reintroduced by Lofgren as H.R. 2408, and was once again referred to the House Judiciary Committee. Opposition to the Public Domain Enhancement Act comes from the entertainment industry sphere, particularly the Motion Picture Association of America (MPAA) and its lobbyists. In his book Free Culture , Lawrence Lessig lays out

1675-414: The International Covenant on Civil and Political Rights and Universal Declaration of Human Rights , with section 26 preventing the application of retroactive penalties. This is further reinforced under section 6(1) of the current Sentencing Act 2002 which provides, "[p]enal enactments not to have retrospective effect to disadvantage of offender" irrespective of any provision to the contrary. Section 26 of

1742-489: The International Covenant on Civil and Political Rights , and Article 9 of the American Convention on Human Rights . While American jurisdictions generally prohibit ex post facto laws, European countries apply the principle of lex mitior ("the milder law"). It provides that, if the law has changed after an offense was committed, the version of the law that applies is the one that is more advantageous for

1809-662: The Iranian Constitution . During the Irish Civil War , Anti-Treaty IRA members Rory O'Connor , Liam Mellows , Richard “Dick” Barrett and Joseph McKelvey were executed ex post facto and without trial, just 2 days into the existence of the Irish Free State . Despite being imprisoned for over four months, following their deaths the Third Dáil retrospectively approved their executions for

1876-698: The Kellogg–Briand Pact , the Covenant of the League of Nations , and the various Hague Conventions . William O. Douglas complained that the Allies were guilty of "substituting power for principle" at Nuremberg Trials because the actions of the defendants were lawful in the 1930s Germany. He contended that the Nuremberg Trials were implementing laws after the fact (that is, ex post facto) "to suit

1943-561: The Norwegian Constitution prohibits any law to be given retroactive effect. The prohibition applies to both criminal and civil laws, but in some civil cases, only particularly unreasonable effects of retroactivity will be found unconstitutional. Article 12 of the Constitution of Pakistan prohibits any law to be given retroactive effect by stating: The 1987 Constitution of the Philippines categorically prohibits

2010-734: The Nuremberg Trials following World War II were based on ex post facto law because the Allies did not negotiate the Nuremberg Charter , which defined crimes against humanity and created the International Military Tribunal, until well after the acts charged. Others, including the International Military Tribunal, argued that the London Charter merely restated and provided jurisdiction to prosecute offenses that were already made unlawful by

2077-617: The Radbruch formula . In 2010, the Hungarian National Assembly established a 98% punitive tax on any income over two million forints received either as a retirement package or as severance pay in the previous five years in the government sector. In India, without using the expression " ex post facto law ", the underlying principle has been adopted in the article 20(1) of the Indian Constitution in

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2144-475: The death penalty (previously abolished in 1930) for acts of treason committed during German occupation. Passed on 1 June 1945, the law applied to actions performed subsequent to 9 April 1940, unless those actions were done under orders from the government prior to 29 August 1943. With this authorization, 103 death sentences were issued, of which 46 were carried out. Estonian constitution is declaring that no one shall be convicted of an act which did not constitute

2211-499: The public domain . For instance, scholar Neil Netanel argued that Copyright Term Extension Act 1998 prevented the entering of works central to cultural heritage of the US into the public domain. He argued, culturally important dissemination, recasting, or incorporation into new expression is prevented due "to the copyright holder's veto". As examples he gave the adaption of the plot from novels such as The Great Gatsby and Peter Pan ,

2278-485: The 1944 liberation of France introduced the status of indignité nationale for Nazi collaborators as a way to avoid ex post facto law. Article 103 of the German basic law requires that an act may be punished only if it has already been punishable by law at the time it was committed (specifically: by written law, Germany following civil law). Robert A. Taft , at the time a U.S. Senator from Ohio, asserted that

2345-707: The Administrative Code of the Republic of Lithuania. Lithuanian lawyer Dainius Žalimas contends that there has been retroactive application of the law on Genocide (and subsequently adopted articles of the Criminal Code) against participants in Soviet repressions against Lithuanian guerilla fighters and their supporters, and gives examples of such decisions. The Article 99 of the Criminal Code of

2412-639: The Bill of Rights and the previous sentencing legislation, the Criminal Justice Act 1985, caused significant digression among judges when the New Zealand Parliament introduced legislation that had the effect of enacting a retrospective penalty for crimes involving an element of home invasion. Ultimately, the discrepancy was restricted with what some labelled artificial logic in the cases of R v Pora and R v Poumako . Article 97 of

2479-529: The Copyright Office to maintain an easily searchable database, so that for works that the original publisher still wishes to maintain copyright on, potential derivative creators can find out who paid the US$ 1 tax and negotiate with them for permission. This bill was first introduced in the House on June 25, 2003, by representatives Zoe Lofgren ( D - CA ) and John T. Doolittle ( R -CA) where it went to

2546-483: The Interior Päivi Räsänen became subject of a criminal investigation about suspected agitation against an ethnic group in late 2019 over her text concerning homosexuality, which was published online in 2004. The statute of limitations for said charge is five years, which has led the case to be interpreted as ex post facto . However, agitation against an ethnic group is a perpetuating crime , and

2613-481: The International Covenant on Civil and Political Rights. According to the 5th Article, section XXXVI of the Brazilian Constitution , laws cannot have ex post facto effects that affect acquired rights, accomplished juridical acts and res judicata . The same article in section XL prohibits ex post facto criminal laws . Like France, there is an exception when retroactive criminal laws benefit

2680-653: The Republic of Lithuania was introduced only on September 26, 2000, and therefore can't be used in events of 1944–1953. According to the first and second paragraphs of the 14th Article of the Mexican Constitution , retroactive application of the law is prohibited if it is detrimental to a person's rights, but a new law can be applied if it benefits the person. Article 4 of the Law on General Provisions (in effect since 1838) states that "The law has no retroactive effect". Article 1 of Criminal Law states that no act

2747-485: The accused person. In Canada , ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms . Also, under section 11(i) of the Charter, if the punishment for a crime has varied between the time the crime was committed and the time of sentencing following a conviction, the convicted person is entitled to the lesser punishment. Due to section 1 and section 33 of

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2814-526: The accused. This means that ex post facto laws apply in European jurisdictions to the extent that they are the milder law. Australia has no strong constitutional prohibition on ex post facto laws, although narrowly retrospective laws might violate the constitutional separation of powers principle. Australian courts normally interpret statutes with a strong presumption that they do not apply retrospectively. Retrospective laws designed to prosecute what

2881-543: The clamor of the time." American Chief Justice Harlan Stone , likewise, called the Nuremberg Trials a "fraud" because of the ex post facto laws. The problem of ex post facto law was also relevant in the 1990s after German reunification as there was a discussion about the trials against East German border troops who killed fugitives on the Inner-German border ( Mauerschützen-Prozesse – Wall-shooters'/ -guards' trials ). German courts in these cases recurred to

2948-600: The constitution when they would have resulted in the loss in a right to damages before the courts, the Irish Supreme Court having found that such a right is a constitutionally protected property right. Israel enacted the 1950 Nazis and Nazi Collaborators (Punishment) Law for the purpose of punishing acts that occurred during the Second World War and the Holocaust , when Israel did not exist as

3015-492: The copyright may be extended to the end of the normal maximum term, currently 95 years for a work made for hire. In practice, this would resemble copyright renewal under the Copyright Act of 1909 , but the bill will create a 50-year term renewable five times for 45 years. The problem that the law attempts to solve is that the cost of locating the owner of a work is often prohibitive. For works that are still in print, this

3082-460: The copyright's incentive for creative production ) is a significant part of public and scientific discourse and reception. One of the earlier and often cited positions is from the British politician Thomas Babington Macaulay who argued in an 1841 speech in the House of Commons that copyright is a monopoly and as such has generally negative effects on society. Although Macaulay's speech

3149-432: The early 20th century there have been a number of adjustments made in various countries, which can make determining the copyright duration in a given country difficult. For example, the United States used to require copyrights to be renewed after 28 years to stay in force, and formerly required a copyright notice upon first publication to gain coverage. In Italy and France, there were post-wartime extensions that could increase

3216-435: The enactment of the law. In criminal law , it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; it may extend the statute of limitations ; or it may alter the rules of evidence in order to make conviction for

3283-560: The enactment or validity of such a law. There is, thus, a difference between the Indian and the American positions on this point; whereas in the United States, an ex post facto law is in itself invalid, it is not so in India. The courts may also interpret a law in such a manner that any objection against it of retrospective operation may be removed. An example for retrospective law in India

3350-570: The federal Parliament, which has exclusive jurisdiction over criminal law, has never attempted to enact an ex post facto law (or any other law) using section 33. The Charter prohibition applies only to criminal law. Changes to civil law in Canada can be, and occasionally are, enacted ex post facto . In one example, convicted murderer Colin Thatcher was ordered to forfeit proceeds from a book he had published (after being paroled from prison) under

3417-440: The following words: No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which have been inflicted under the law in force at the time of commission of the offence. Further, what article 20(1) prohibits is conviction and sentence under an ex post facto law for acts done prior thereto, but not

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3484-595: The judicial decision. Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). In some nations that follow the Westminster system of government, ex post facto laws may be possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes, within legal constraints. In

3551-593: The least objectionable way of remunerating them is by means of copyright. Liebowitz describes use of the term monopoly in relation to copyright as misleading, but "rhetorically effective"; while Towse writes that a more appropriate term is ' monopolistic competition '. In 2009, a paper by Rufus Pollock of University of Cambridge scientifically quantified the optimal copyright term length at 15 years, significantly shorter than any currently existing copyright term, via an economical model with empirically-estimable parameters . In 2013 scholar Petra Moser concluded in

3618-420: The ordinary law; on the contrary, non-retroactivity in criminal law is thought absolute. Article 39 of the constitution of Japan prohibits the retroactive application of laws. Article 6 of Criminal Code of Japan further states that if a new law comes into force after the deed was committed, the lighter punishment must be given. Lithuania has no constitutional prohibition on ex post facto laws. However, as

3685-404: The reason for the MPAA opposition to the bill: Proponents such as Lessig have suggested that copyright holders may be motivated to oppose the PDEA by a competitive threat: a huge wave of abandoned works would spill into the public domain which could form the basis of new derived works that would compete commercially with established copyrighted works. Copyright term The copyright term

3752-407: The refashion of characters like Mickey Mouse , or the use of Tin Pan Alley songs like " Let's Do It (Let's Fall in Love) " for documentaries about the Great Depression . For the millions of older copyrighted works of less enduring popularity, it is difficult, or impossible, to trace the copyright ownership and determine who holds the particular rights that would have to be licensed for the use of

3819-459: The right thing and allowed reprinting, however much they abhorred their ancestors' works! It is also worth noting that Macaulay is arguing here against term extension, he is not arguing against copyright. This point is well made by Macaulay himself: The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books: we cannot have such a supply unless men of letters are liberally remunerated; and

3886-556: The status of constitutional legislation and can therefore be overruled by subsequent laws, the Conseil Constitutionnel has determined that retroactive laws can be passed within certain limits – such as in the case of financial or tax legislation –, particularly where it is considered to be in the "general interest"; this has been demonstrated by a series of decisions handed down by the Conseil Constitutionnel concerning retroactive tax laws. However, in criminal law, ex post facto sanctions are effectively forbidden as per Article 112-1 of

3953-413: The statute of limitations only begins once the offending material has been removed from public viewing. The investigation has still been characterized as strange, as Räsänen's text is hardly the only material online or otherwise that could be viewed as agitation against an ethnic group, and the demarcation between who should and who should not be prosecuted for publishing and/or making such material available

4020-459: The suggestion of letting them enter the public domain after 20 years raised a controversial public debate about copyright terms and the public domain between game industry veterans John Walker , George Broussard , and Steve Gaynor. A paper published in March 2015 in the Journal of Artificial Societies and Social Simulation analysed with a simulated model the relationship of scientific knowledge creation to copyright term length and concluded

4087-458: The term by approximately six years in Italy and up to about 14 in France. Many countries have extended the length of their copyright terms (sometimes retroactively ). International treaties, like the Berne Convention , establish minimum terms for copyrights, but these only apply to the signatory countries, and individual countries may grant longer terms than those set out in a treaty. The extension of copyright term imposes tangible restrictions on

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4154-427: The various jurisdictions has led to some disputes involving derivative works created and/or sold elsewhere in the world. Several charts have been made to help decipher the various copyright terms in the United States, such as: Ex post facto law An ex post facto law is a law that retroactively changes the legal consequences or status of actions that were committed, or relationships that existed, before

4221-528: The work was created by an individual or a corporation. In most of the world, the default length of copyright is the life of the author plus either 50 or 70 years. In the United States, the term for most existing works is a fixed number of years after the date of creation or publication. In most countries (for example, the United States and the United Kingdom ) copyright expires at the end of the calendar year in question. The length and requirements for copyright duration are subject to change by legislation, and since

4288-412: The work. The problem of such orphan works stems from the extension of copyright term and the lack of requirement for the copyright owner to renew or register their copyright . In order to tackle this perceived problem some jurisdictions have revised their copyright laws to allow use of orphaned works, after diligent searches. Discussions about the optimal length of the copyright term (e.g. regarding

4355-441: Was an original signatory in 1948. The Declaration includes a prohibition on retrospectively holding anyone guilty of a penal offence that was not an offence at the time it was committed. The Australian Human Rights Commission states the Declaration is an "expression of the fundamental values which are shared by all members of the international community" but "does not directly create legal obligations for countries." Australia

4422-538: Was not mandatory for sex offenders until 2011, and had to be ordered by a judge. Sex offender registration was seemingly mandatory for people convicted before December 15, 2004, who were serving a sentence on that date, but was only optional for sex offenders convicted between December 15, 2004, and January 1, 2011. Because section 11 of the Charter is among the sections that can be overridden under section 33 (the notwithstanding clause), Parliament could in theory enact ex post facto laws by invoking section 33. However,

4489-409: Was perceived to have been a blatantly unethical means of tax avoidance were passed in the early 1980s by the Fraser government (see Bottom of the harbour tax avoidance ). Similarly, legislation criminalising certain war crimes retrospectively has been held to be constitutional (see Polyukhovich v Commonwealth ). Australia participated in drafting the Universal Declaration of Human Rights and

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