Shall Figure of Mickey be Protected by Copyright Law in DPRK?

By Albert Chen

Mickey Mouse’s showing up in the show for Kim Jong-un, the new leader of DPRK, has provoked the coverage of news reports worldwide. The swift reaction by Disney stated that “This was not licensed or authorized by The Walt Disney”, which in turn made the event gather more controversy. Moreover, the State Council of USA also expressed its concern on the issue.

Not limited to the politics behind the event, the copyright matters involved in the character performance is also very interesting. This brings forth the question; does the performance constitute the infringement against Disney? In my opinion, the answer to the question shall lay on the answers to another two more basic questions: 1) Is Mickey Mouse still in his protection period? 2) Could copyright be protected through DPRK and USA?

I. Is Mickey still in his protection term of copyright?

Mickey’s debut was in November 1928 in the animated cartoon Steamboat Willie by The Walt Disney (the “Disney”). Therefore, legally, it shall be the work of entity created by Disney, and has a history of 84 years. As is known, the copyright is protected for a certain time, and after its expiration, the work shall come into the public domain and thereby, excluding some personal rights, most of its property rights shall no longer be protected by law. The current protection term adopted by countries around world range from 50- 70 years.

For this reason, to decide whether Mickey is still covered by law in copyright, the period after its initial publication and the legislative protection term in the countries involved shall be considered, namely those regulated in USA and DPRK in the case.

(1) The protection term in USA

Unlike most countries around the world, USA follows a lengthy protection term, which is thought to have come from the influence of its booming culture industry and the demands of benefits among the work creators. According to USA law, any entities may enjoy a protection term of 95 years over their works, calculating from the works’ first publication. Therefore, Mickey shall still under the protection of USA copyright law until the year 2023.

In addition to this, please note the duration of the copyright protection in USA was 75 years before 1998, which was amended by Sonny Bono Copyright Term Extension Act to the current 95 years, and accordingly Mickey delayed its coming into public domain from the original 2003 to 2023.

Then is there any similar legislation in DPRK? The answer SEEMS TO BE yes.

(2) The protection term in DPRK as searched

For the known reasons, it is almost impossible to find any official reply or information on DPRK’s domestic legislation, and that took an amount of time in the law research. However following much effort, I found some clues in a book named “North Korea Handbook” (the “Book”)

According to the Book, the latest Copyright Act of DPRK was rectified by the Nation’s 4^th Session, 10^th Term of the Supreme People’s Assembly in 2011, which consists 6 chapters and 48 articles. Yet, by the available clauses, no regulations on the copyright of entities have been found, but the following articles on the right of individual copyright owner:

“Article 23 The property rights on copyrighted materials shall be protected for fifty years after the creator’s death from the time they are announced.”

In the event there had promulgated such a law in DPRK (such supposing shall also cover the discussion below), and considering the contents in the clause and the comprehensive nature of the legislation, it can be concluded that there shall also be the legal protection on entities’ copyright in North Korea and the 50 years in the same, calculating from its first publication.

Due to the fact that the copyright is featured with territory protection, here comes another three questions: 1) Could American born Mickey be protected in DPRK? 2) If so, how to coordinate the different term of 95 years in USA and 50 years in DPRK? 3) Could the Korean band be of full free-liability once the legal term of DPRK shall prevail?

II. The transnational copyright protection in the case

Generally, a work created and publicized in one country shall not naturally be protected in another unless there signed a binding convention or bilateral treaty. The convention may include Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and Agreement On Trade-related Aspects of Intellectual Property Right. And the treaty refers to that like The Sino-USA Memorandum of Understanding on IPR Protection.

(1) Could USA born Mickey be protected in DPRK?

By the clause in the Book:

“Article 5 The DPRK shall duly protect copyrights belonging to corporations and individuals of a foreign country that honors the conventions or treaties that it has ratified.”

From this aspect, the protection of foreign works in DPRK shall also be preconditioned by a bilateral treaty or multilateral convention.

So far no treaties on the transnational copyright protection treaty between USA and DPRK have been found, and on the account of the confrontation between the nations, there seems to be little chances of such treaties being signed. However, both DPRK and USA are the contracting parties of Berne Convention and one of the basic principles in the Convention is the “automatic protection”. So, any USA created works could be put under the protection of DPRK law on their publications.

(2) How to handle the differences on the protection terms?

As discussed above, the protection term in USA is 95-year while that in DPRK is 50-year; furthermore, to consider North Korea’s regulation of protection on foreign works, then how should the different periods be coordinated?

Actually, the answer could lie in the Convention. The document regulates that any domestic protection on foreign works shall be included in the laws in that country and providing no laws promulgated in the country of the works origin. With such regulations, the term of 50 years shall be solely applied in DPRK for the copyright protection, and that means Mickey has been a cartoon figure in the public domain from 1978 in the country.

(3) No infringement liability shall be taken by Korean band?

It may be arbitrary when I say that no liability shall be taken by the Korean band in the case. That is for Mickey as he is not only a cartoon figure, but noted for the updated stories about him. These stories are legally the derivative works of Mickey and shall also be protected from its publication day. Therefore, though the character of Mickey and its original stories may have been in the public domain, the copyright protection could extend to its new derivative works.

By this, the North Korea Band shall not still be liable for its unauthorized use of Mickey’s derivative works in the show which is still in the 50-year protection term.

Also in the Book, I found the following articles:

“Article 31 The organizations, businesses, other entities, and individuals shall pay corresponding royalties for their use of copyrighted materials.

Article 46 Corresponding damages shall be compensated if copyrights or related rights are infringed.

Article 47 The responsible officers of organizations, businesses, or other entities, and individuals that have inflicted serious damages by violating the Copyright Act shall be held responsible for administrative or criminal charges depending on the circumstances.”

So, the North Korea Band shall, in addition to the legal liability of criminal law or administrative law, will have to pay the license fee.

In conclusion, the sole use of the Mickey figure will infringe no copyright in DPRK, while such liabilities shall be established when the derivative works of Mickey are involved in the show.

Finally, China also regulates a 50-year protection term for copyrighted work. The reason why the mouse is still in the hands of Disney, excluding the aforesaid derivative works, to register the figure as the trademark also plays a prominent role in the protection.

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