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1940s magazines, "reasonable inquiry" into copyrig

 
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lifeisamazing
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PostPosted: Tue Nov 11, 2014 8:14 pm    Post subject: 1940s magazines, "reasonable inquiry" into copyrig Reply with quote

Hello,

I am looking to reprint a magazine from the 1940s. There are several factors which make the copyright status of this magazine unusual:

1) All contributors to the magazine used pseudonyms. None is identifiable, since none gives their real name.

2) No publisher's personal name is given in the magazine.

3) The publishing company's name is given in the magazine.

4) The publishing company ceased trading in 1960 and I can see no record of the rights devolving elsewhere.

My question is this: with all authors contributing pseudonymously and with the editor and publisher not named, what steps do I need to take to show that I have made "reasonable inquiry" into the ownership of these orphan works?

To clarify, no people are identified who are connected with the magazine, the publishing company is named, but the company has been defunct for 54 years.

Awaiting advice on this one.

Thanks,

Life Is Amazing!
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AndyJ
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PostPosted: Tue Nov 11, 2014 9:21 pm    Post subject: Reply with quote

Hi lifeisamazing,
I think the first step is to narrow down the search parameters. Is there a copyright notice in the magazine? Chances are that if there is one it will be the publisher claiming all rights. However if any of the writers and or artists (irrespective of their pseudonyms) are credited with copyright then the problem is more difficult.

Let's look at case one where the publisher claims full copyright. This implies that the artists/writers were either staff members or were commissioned to produce their contributions and transferred their rights to the publisher at the time. This is more likely since it is common practice and the contributors were using pseudonyms. On that basis all you will need to do is conduct a diligent search to find if there is a current owner of the publishing company's intellectual property. This will involve checking with the Professional Publisher's Association and any other trade bodies which might have information about the defunct company, and with Companies House to see if there are records of the winding up of the business. There is a useful document giving an overview of the orphan licensing process available from the IPO here (pdf). And a second brochure explains the diligent search process. The one for literary works can be found here (pdf).

Case two is where you have reason to believe individual contributors retained their copyright. Since they worked under pseudonyms, it means that section 57 of the Copyright Designs and Patents Act applies. This section says that if after a reasonable search you have failed identify the author by name and it would be reasonable to assume that the individual died more than 70 years ago, then it does not infringe copyright to re-publish the work now. However there is a caveat, which says that where there are joint authors (as with your magazines), and they are all anonymous, there must be grounds for assuming that all the authors died more than 70 years ago. Given that these magazines were published in the 1940s, ie between 65 and 75 years ago, I don't think it would reasonable to assume that any of the authors died within 5 years of producing their work, and certainly not all who were concerned with each edition of the magazine. So on that basis you would be forced to use the same orphan work licensing regime referred to above for each author, which will be time consuming and possibly expensive, for any works in the second category.
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lifeisamazing
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PostPosted: Wed Nov 12, 2014 6:32 am    Post subject: Reply with quote

Hello,

Thanks for your speedy reply, by which I'm very impressed!

I am interested in the following statement from you, since it contradicts information I have already received. You state:

"This section says that if after a reasonable search you have failed identify the author by name and it would be reasonable to assume that the individual died more than 70 years ago, then it does not infringe copyright to re-publish the work now. However there is a caveat, which says that where there are joint authors (as with your magazines), and they are all anonymous, there must be grounds for assuming that all the authors died more than 70 years ago."

However, the website of The British Academy says differently. (I can't post the address because I'm a newbie here, but the page can be found on the British Academy website. Googling the following string: "british academy copyright guidelines orphan works" should bring up the page as first choice) The following information appears in section 8.5 of the document when dealing specifically with orphan works:

"8.5 Reasonable grounds for assuming copyright has expired. In considering this aspect, the following points must be borne in mind:

Was the work published more than 50 years ago? This is because there are special rules for works published anonymously before 1 August 1989, under which their copyright expires 50 years from the end of the calendar year in which the work was first published. Thus, in 2008, any work published anonymously or pseudonymously in or before 1957 is out of copyright."

Which is correct?

To give a littler further information: The magazine was a specialist fanzine with keen amateur contributors sharing clandestine experiences. They were not professional authors who happened to use several names depending on the market they were writing for. The contributors deliberately sought to keep their identities secret and there is no clue as to who they are.

On another tack, the name of the publishing company does appear in the magazine, though there is no copyright notice. Should I assume firstly that the "orphan works" interpretation is secondary to me ascertaining the status of the rights of the defunct publisher? Although the magazine was based just off of Fleet Street, I have the distinct impression this was a creaky one-or-two-man business in a single room which closed when the owner retired.

The magazine was secretive in nature and no names were given throughout - including that of any person connected to the publishing company. Even the British Library is very scant in the information it holds on this magazine and its publisher.

Thank you once again for your time.
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AndyJ
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PostPosted: Wed Nov 12, 2014 8:40 pm    Post subject: Reply with quote

Hi lifeisamazing,
On the length of the term of protection for anonymous or pseudonymous works, I and the British Academy are both half right. That is to say, an anonymous work published before 1 January 1945 would be subject to the old 50 year term, while a similar work published after 31 December 1944 is subject to the new 70 year term. This is because an EU Directive (the Copyright Term Directive 93/98/EEC), which was brought into force in UK law by Statutory Instrument (SI 1995/3297), changed the term from 50 years to 70 years. This meant that works which were published after 1944 were still in copyright (the old 50 years) when the new Regulations came into force in 1995, and so were subject to the new rules, whereas older works just escaped and are now in the public domain. There are a few exceptionally complicated factors which mean that in certain circumstances works produced after 1 July 1995 can also be affected by the new term but I won't bore you with the gory details (see Regulation 16 of the SI if you want to know more).

But of course all that only applies if you have reason to believe these contributors retained the copyright in their individual anonymous works.

However the additional details you have provided about these magazines seem to indicate that establishing their orphan status should be relatively straightforward. It is particularly significant that the British Library has few details about the publisher. However you will still need to conduct the diligent search as outlined in the leaflet I linked to, in order to satisfy the IPO. I think this example should prove to be an interesting early case for testing the new orphan work licensing system which is barely two weeks old.

Good luck.
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lifeisamazing
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PostPosted: Wed Nov 12, 2014 10:44 pm    Post subject: Reply with quote

Hello again,

What a great reply, and pretty much what I wanted to hear.

Thanks so much for your help. All of the items I wish to reprint are indeed from the early 1940s.

Fascinating stuff.
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