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copyright expiry question

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PostPosted: Wed Aug 06, 2014 1:56 am    Post subject: copyright expiry question Reply with quote

I have a question regarding archivers of historical footage eg British Pathé, British Movietone.

I have limited knowledge of copyright, however I do understand that after lengthy periods of time, eg 50-100 years, copyright expires. My question is when will the copyright expire on their archives?

The media in question would be newsreels, footage captured for newsreels that is pre 1950's. Now, the context of this is that archivers have spent time/money transferring their data from physical mediums to digital. When should one expect their archives to expire from copyright and become public domain?
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PostPosted: Thu Aug 07, 2014 11:29 am    Post subject: Reply with quote

Hi history555,
Brace yourself for a long and at times, complicated answer.
For the period 1900 to the present 3 separate Acts covered copyright, and for roughly half the period (up to 1 June 1957) there was no specific copyright for films (or cinematographs as they were also known then).
The situation prior to 1 June 1957
Prior to the coming into force of the Copyright Act 1956 (on I June 1957) copyright only subsisted in some of the individual elements which made up a film, for instance as a series of individual photographs (the film frames), a sound track, a music score and if it was a dramatic work such as a feature film, any dialogue would be protected in the script.
To take an example, a typical newsreel film would probably consist of: the opening music which acted as a signature tune for that particular studio and some incidental music; the actual footage shot by a cameraman* (or cinematographer), and the commentary spoken over footage, plus some sounds recorded during filming which might include people speaking. The commentary would have been read from a script which would be treated as a literary work for which there would be an author, but any speech recorded at the time of filming is less likely to have been scripted and so would remain relatively unprotected except as a part of the overall newsreel.
There were a number of complications. For example the length of copyright in photographs and sound recordings was a fixed period. So before 1 June 1957, this was just 50 years from when the photograph was taken, while for sound recordings the period remained at 50 years from recording right up until recently (2013) when the term was extended to 70 years from when the recording was made. This compares with the copyright in the script or the music score which was based on the lifetime of the author/composer plus a further 50 years. And given that most of the individual creators (cameraman, sound recordist, narrator, script author etc) would be employed by the newsreel company, the law would have transferred ownership of the copyright to the company (as it still does today), even though the length of the copyright term was based on the lifetimes of the key individuals.
After 1 June 1957
After I June 1957, a film was entitled to copyright in its own right, but determining the length of the term still depended on the lifetimes of the key individuals. From I June 1957 to 30 June 1994 this person was described as the 'maker' of the film and would normally be the producer, because he was responsible for financing the operation. From 1 July 1994 to the present day, the producer and director are normally jointly held to be the 'authors' for copyright purposes. However since the newsreels you are asking about ceased to be made before 1994, I won't elaborate on that here.

So in order to work out when a specific newsreel might enter the public domain, you ideally need to know whether it was made before or after 1 June 1957.
Before 1 June 1957.
Since copyright in the photographs and the sound recording have now lapsed (they only lasted for 50 years from the creation of the film) you need find the name of a script writer and the composer of any music. They might be listed in the film credits or be available in the archives themselves. If you can find a name then the next step is to find a date of death for the individual concerned. Where there is more than one person, you need the date of death of the last to die. If the date of death was before 1 Jan 1946, the work they were responsible for (script, music score etc) is now out of copyright and consequently the whole film is out of copyright. If the relevant author died after 31 Dec 1945, then you need to add 70 years to the end of the year in which they died to find out when the work they were responsible for will come out of copyright. For example the works of a writer who died in 1947 will come out of copyright on 1 Jan 2018. Practically speaking, it is unlikely that any film made after 1945 is out of copyright yet.

Between 1 June 1957 and 30 June 1994
Any film made after 30 May 1957 would be entitled to copyright in its complete form, and the 'author' is person who made the film, that is to say the producer. The duration of copyright is then determined by the date of death of the author, plus 70 years from the end of the year of death. This means that all films made after 1 June 1957 will remain in copyright for some time yet.

Crown copyright
I noticed one film on the British Pathé website which was subject to Crown Copyright (it was a British Army training film from 1957). Crown copyright is based entirely on when something was made, or if it was published, the later date being the relevant one. Throughout the entire period 1911 to the current day, the length of Crown copyright has been 50 years from the end of the year in which something produced by the Crown (eg all government bodies) was first published, while unpublished works remain protected for 125 years from when they were made, unless within that period they are published, in which case the 50 year term applies. So taking the example of the Royal Army Service Corps Reel 1 the original film is now in the public domain.

Digital Archives
For understandable commercial reasons, the present owners of the Pathé and Movietone archives are unlikely to make it clear which films are now in the public domain, so that they can continue to charge fees to access their stocks. In the case of the films which are available in digital format online, again AP Archive (who administer the Movietone archive) and British Pathé rely on commercial users paying for a licence even if technically this is not a copyright requirement but an access one. I do not think there is any new copyright in the digital version of these films because the digitization process is largely mechanical and lacks the specific ingredient of 'originality' required by copyright law. However there has been no test case on this subject, so the law is not settled. It might be possible to argue that following a case called Sawkins v Hyperion Records Ltd, the person who digitised the film print might have exercised sufficient skill and expertise to make the digital copy a 'new' work, and thus subject to copyright.
I note that both the AP Archive and British Pathé are careful not to claim copyright in every work they hold, and instead speak about rights clearance without specifying the actual rights involved.

* In the case of most films in the pre-1957 period, the director would have told the cameraman what to film (saying 'action' and 'cut' as appropriate!) and so would have been treated as the author of the images. However where newsreels are concerned, it is most likely that the cameraman would have made these decisions and so would thus be the author in such cases.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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PostPosted: Thu Aug 07, 2014 2:05 pm    Post subject: Reply with quote

I cannot thank you enough AndyJ for the time and effort you have given up in replying to my question in such detail. You have covered everything and explained in easy to understand terminology. Thanks ever so much you have been very helpful and saved me alot of hassle trying to research the information myself. You are doing a really great job here!
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