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US reproduction of an old UK publication

Posted: Mon May 18, 2020 10:07 pm
by StevoUK
Hello,

While conducting research for family history recently, I came across a situation where someone in the USA has republished and is selling a work originally written and published in the UK by one of my relatives. I'm curious to know if any copyright has been violated, and/or whether the copyright still holds in the UK if not also in the USA. I've tried to self-serve by reading many of the threads on this very helpful forum, but I'm not able to figure out a definitive answer.

According to the British Library, the original work was published in the UK in 1947. I believe there was a second edition in the early 1950s, but can't find evidence of that just yet. The author died in 1960. I've read that the UK copyright may last either 50 or 70 years after the death of the copyright holder, which would suggest that the USA publication is either just fine, or 10 years too soon. Can anyone suggest how I might go about finding out?

Thank you in advance for any guidance.

Matt

Re: US reproduction of an old UK publication

Posted: Tue May 19, 2020 7:25 am
by AndyJ
Hi Matt,

The person who has re-published your relative's work is no doubt relying on American copyright law when it comes to determining if the original work is still in copyright. The system in the USA changed in 1976 from one where a work had to be registered to gain copyright protection, to the system today which is pretty much the same as has been the case in the UK for several centuries, namely that copyright exists for any original work from the moment it is recorded in some permanent form, and the length of protection is based on the lifetime of the author followed by a post mortem period which has varied over the years.

The US 1976 Copyright Act included some relatively complicated transitional arrangements for works which were already in existence, including works made by foreign authors. Fortunately Cornel University Law School has produced a useful guide for determining whether or not a work is now in the public domain in the USA. If you scroll down to the section headed 'Works First Published Outside the U.S. by Foreign Nationals or U.S. Citizens Living Abroad' you can see the various options laid out. Where it talks about formalities, these include the requirement that a formal notice of copyright is included in the work; it is has been registered and the registration renewed at the end of the initial 28 year period, a copy of the book was deposited with the Copyright Office at the Library of Congress; and the manufacture of the US edition was done there. Your relative's book will almost certainly have had a copyright notice (which is pretty standard, though not mandatory, in the UK), but it may well be that it was never registered in the USA, and if so, it is even less likely that a separate edition was printed there. This latter provision was a form of protectionism intended to provide work for the US printing industry.

So if I am right in my assumptions, the likely category is: 1925 through 1977 - Solely published abroad, without compliance with US formalities or republication in the US, and not in the public domain in its home country as of 1 January 1996 (see my penultimate paragraph about this aspect). As you can see the copyright term would be 95 years from the date of first publication, so in this case, protection would last until the end of 2042.

However if you think the book might have been published in the USA and met some or all of the formalities, then obviously one of the other categories will apply. If you have lots of patience (as a family historian, you probably do) then you can search through the past registration records of the Copyright Office which you can access via the Internet Archive here. However it may be easier to access the records after first visiting this portal. If you find that the book was registered in 1947, you then need to check if re-registration occurred 27 years later.

The worst case scenario would be that the book was first registered, printed and published in the USA in 1947, but that the registration was not renewed in 1974/5, meaning that the book would now be in the public domain in the USA. Only around 12% of books from this period had their registration renewed.

Looking briefly at the status of the UK copyright, since the work was published in1947, the period of protection would have been the lifetime of the author plus 50 years from the end of the year of death, which takes us to 3I December 2010. However as the book was in copyright on 1 July 1995, it will have benefitted from a 20 year extension to the post mortem period (so 70 years after death) which came into force that year. This means that the book will now not enter the public domain here in the UK until 1 January 2031. Incidentally, whoever is the heir to your relative's estate may possibly be owed some royalties or public lending right payments which have accrued since the death of the author; you or they can check with the Authors' Licensing and Collecting Society (ALCS) if this is so.

It therefore appears that in all likelihood, the republication is an infringement. What remedies are available is a different topic which I can cover separately if you want me to.

Re: US reproduction of an old UK publication

Posted: Tue May 19, 2020 2:45 pm
by StevoUK
Andy, hi – first of all, thank you for the comprehensive response. The 50 or 70 year period of protection was unclear to me before, but now makes perfect sense. I think your assumption is correct that this was a UK-only publication. I will do some research in the US archives, but I think it is highly unlikely that it was published there. I do also need to confirm that the publication was copyrighted in the UK – it was a relatively short publication. While I don't have a have copy myself, there is one in the British Library which leads me to assume it was a formal and properly copyrighted publication. When we are finally free to roam the earth I will go to the British Library to check.

I think an understanding of the remedy process (and potential benefits) might be interesting, however I am also not necessarily looking to make life difficult for the person who has republished the work. I think their intent is to keep alive some interest in a niche, and I doubt they are selling sufficient copies to make a fortune. The potential for royalties is interesting though, so I will certainly explore that.

Thank you again – this really is an incredibly helpful and informative forum, and even though I knew that to be the case I hadn't expected to get such a swift and complete answer.

Matt

Re: US reproduction of an old UK publication

Posted: Tue May 19, 2020 3:52 pm
by AndyJ
Hi Matt,

You don't need to be concerned about the UK copyright. Provided a work has been fixed in a permanent medium, copyright automatically exists. So even the original manuscript prior to printing would have established the UK copyright. That fact that there is a copy in the British Library tends to show that the publisher followed the correct procedure in accordance with the Legal Deposit Libraries Act*. In the UK this is a separate thing from copyright, but in the USA the copyright registration and copy deposit were combined in a single process. You may find that the other legal deposit libraries, such as the Bodleian in Oxford, will also hold a copy of the book.

Assuming that there was no first registration of the copyright in the USA in 1947 which was not renewed, resulting in the book now being in the public domain there, there would seem to be a legally sound basis for a claim for copyright infringement.

As for remedies, these range from a full-blown copyright infringement action which would have to be conducted through the US court system, down to coming to some profit sharing agreement with the current publisher. However it worth stressing that only the writer's heir has the legal right to bring a claim (whether that's here or in the USA). Supposing that the heir wanted to take legal action in the US courts, this would be expensive and inconvenient to do from the UK. The potential amount of damages would be unlikely to outweigh the legal costs. What's more, the American publisher may be operating a print-on-demand service and so there would be no copies in storage which the court might order to be impounded. However the current owner of the copyright (the writer's heir) can use the Digital Millennium Copyright Act procedure to ensure that any website through which he is selling the book is forced to de-list him. If he is using a third party website like Amazon or Ebay, these sites have simple procedures through which to lodge a complaint (known in the jargon as a takedown notice). Alternatively, as already mentioned, it might be simpler for the heir (or you acting as their agent) to contact the American publisher and arrange a profit share deal with him, with the threat of a DMCA takedown to stregthen your bargaining position.


* The 2004 Legal Deposit Libraries Act is the current legislation; at the time your relative's book was published, it was the Copyright Act 1911 which imposed much the same obligation of publishers.