Dealing with global copyright lengths

Advice for those new to the concepts of copyright
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imaginewizard
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Dealing with global copyright lengths

Post by imaginewizard »

I have been trying to find something online to help with this, but so far no luck (the closest I have come to it is CC's article on global copyright [https://certificates.creativecommons.or ... copyright/] but it falls short of actually answering the question). Would appreciate some help and ideally with sources if possible!

I'll use the recent Winnie-the-Pooh public domain status as a case study.

So Winnie-the-Pooh (up to his 1926 portrayal) entered public domain on the 1st January - in the US. However, in the UK, the book is still copyrighted until 2027. A five year discrepancy due to the more detailed way US copyright law appears to work.

As per that CC article, copyright law is territorial - and this is easy to understand in the context of if I wanted to physically publish something - if I am understanding right, I could publish a book using Winnie-the-Pooh in the States but not in Britain.

But what if I published this online? What copyright law am I falling under? The attempts at harmonising copyright law haven't quite come to the point of eradicating this area. The CC articles briefly makes the argument of it depends on where your institution is based (it then goes on to plug Creative Common licenses - which I don't hold terribly against the article, I am a big fan of Creative Commons, but it doesn't quite help me here) - but considering this is my biggest confusion, it doesn't really go into enough detail? What are we defining as an institution? How does that apply to me as an independent?

I believe there's a similar dispute around Sherlock Holmes (a reverse situation where all of Doyle's books are public domain in the UK, but the latter ten aren't in the US).

I can come up with some ideas - I believe I read once you could consider the jurisdiction to be where the hosting servers are located physically, although this, I think, holds progressively less and less true as websites aren't really hosted like that anymore. Maybe, then, where the website's owner is legally based? Wattpad, for example, is based in Canada, so if I published my Winnie-the-Pooh story on Wattpad, I would be subject to Canadian copyright laws (in which case I am, and would have been fine, as Winnie-the-Pooh seems to be public domain in Canada since 2006)?

But I haven't found anything to back that up so I'm not sure if that's true - any input would be appreciated!
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AndyJ
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Re: Dealing with global copyright lengths

Post by AndyJ »

Hi imaginewizard,

I am not surprised you have found this confusing. The simple asnswer is that the law is not settled on this issue. Indeed, no-one can even agree the correct term for the issue, although choice of law is the most widely accepted term. The term Proper Law is also used in this context

There are a number of international conventions which aim to resolve the matter when it comes to civil claims (criminal cases are a very different issue). The problem is that these conventions are not universally accepted by all nations. And since the internet can be accessed in every single nation on earth, it means that there are many different approaches, all of which may be valid in their local context. Organisations such as the World Intellectual Propoerty Organisation (WIPO), an agency of the UN, tries to harmonise such matters but has had little success when it comes to enforcement of rights.

Generally speaking the issue is decided based on 3 main factors: the place where the claimant (ie the copyright owner) lives, the place where the defendant (the alleged infringer) lives and the place where the 'harm' occurred. As you have noted, since the internet extends everywhere, potentially the 'harm' can occur everywhere too. In the real world this is taken to mean the place where the greatest harm has occurred, for instance where the target audience of the defendant is based or where the claimant has theoretically lost the most amount of potential income due to the infringement. Frequently with cases involving patents, large companies will sue in several different jurisdictions simultaneously, mainly because they can afford to.

So to take your Winnie the Pooh example, as you and the copyright owner, the estate of AA Milne (and/or E. H. Shepard, the illustrator of the Winnie the Pooh books), are based in the UK, that would tend to make the UK the forum conveniens (meaning the most appropriate place to bring the claim). However in the case of the 10 Sherlock Holmes stories, the fact that you and the Conan Doyle Estate were based in the UK might be outweighed by the fact that the estate stood to make a very large financial loss (ie the greatest harm) in the USA due to unsold licences*.

You mention the location of the servers. This is technically the place from which publication takes place and is very relevant when it comes to measures to get alleged infringing material taken down. For instance the US DMCA would apply to all companies operating under US law (eg Google, Facebook etc) irrespective of where the actual local server was located. For companies within the EU the correct authority for taking down infringing material is Article 14 of the EU eCommerce Directive. Under the DMCA and Article 14 of the eCommerce Directive, hosting companies are generally exempt from liability for infringement that tthey are unaware of, and so their place of operation usually won't feature in the matrix when it comes to deciding forum conveniens. The location of the servers (or more accurately, the registered office of the company operating the servers) is also relevant when it comes to any order such as an injunction, made by the deciding court. The England and Wales High Court, for example, has no authority to tell a company in the USA to stop doing something, although the successful claimant would usually be able get the injunction enforced by the US courts if it meets US legal standards, but this will be costly.

So to summarise, there is no neat and simple answer. Much depends on the claimant and his ability to fund, and his appetite for, complicated litigation, when he is considering how to assert his rights.





*This is just for the sake of re-using your examples. In fact the Conan Doyle Estate has very little it could license with respect to the last 10 Sherlock Holmes stories. By most measures the Estate effectively lost the case against Klinger
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Nick Cooper
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Re: Dealing with global copyright lengths

Post by Nick Cooper »

imaginewizard wrote: Tue Jan 04, 2022 11:40 pm I believe there's a similar dispute around Sherlock Holmes (a reverse situation where all of Doyle's books are public domain in the UK, but the latter ten aren't in the US).
This relates to the last ten short stories (not books),which were published between 1924 and 1927, however eight of them have now progressively fallen into the US public domain, right up to the sixth, seventh and eighth at the end of 2021, having been originally published in 1926. This leaves only two stories from 1927 (The Veiled Lodger and Shoscombe Old Place) still in copyright in the US until the end of 2022.

The issue with these stories is rather a complex one, but largely revolves around the assertions by one or both of the two putative Conan Doyle estates (yes, really!) that, as some Holmes material remains in copyright, the character as a whole is still protected, and thus they (the estate/s) should receive licensing fees, although this notion has been largely rejected by US courts. This time next year it will all be over.
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AndyJ
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Re: Dealing with global copyright lengths

Post by AndyJ »

Hi Nick,

Yes it really was a futile case against Klinger. But the end of the copyright won't mean the end of the estates; they still have loads* of trade marks in their portfolio, and as we know, by carefull management, the life of a trade mark can be indefinite!

* for instance, these.
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imaginewizard
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Re: Dealing with global copyright lengths

Post by imaginewizard »

AndyJ wrote: Wed Jan 05, 2022 9:06 am Hi imaginewizard,

I am not surprised you have found this confusing. The simple asnswer is that the law is not settled on this issue. Indeed, no-one can even agree the correct term for the issue, although choice of law is the most widely accepted term. The term Proper Law is also used in this context

There are a number of international conventions which aim to resolve the matter when it comes to civil claims (criminal cases are a very different issue). The problem is that these conventions are not universally accepted by all nations. And since the internet can be accessed in every single nation on earth, it means that there are many different approaches, all of which may be valid in their local context. Organisations such as the World Intellectual Propoerty Organisation (WIPO), an agency of the UN, tries to harmonise such matters but has had little success when it comes to enforcement of rights.

Generally speaking the issue is decided based on 3 main factors: the place where the claimant (ie the copyright owner) lives, the place where the defendant (the alleged infringer) lives and the place where the 'harm' occurred. As you have noted, since the internet extends everywhere, potentially the 'harm' can occur everywhere too. In the real world this is taken to mean the place where the greatest harm has occurred, for instance where the target audience of the defendant is based or where the claimant has theoretically lost the most amount of potential income due to the infringement. Frequently with cases involving patents, large companies will sue in several different jurisdictions simultaneously, mainly because they can afford to.

So to take your Winnie the Pooh example, as you and the copyright owner, the estate of AA Milne (and/or E. H. Shepard, the illustrator of the Winnie the Pooh books), are based in the UK, that would tend to make the UK the forum conveniens (meaning the most appropriate place to bring the claim). However in the case of the 10 Sherlock Holmes stories, the fact that you and the Conan Doyle Estate were based in the UK might be outweighed by the fact that the estate stood to make a very large financial loss (ie the greatest harm) in the USA due to unsold licences*.

You mention the location of the servers. This is technically the place from which publication takes place and is very relevant when it comes to measures to get alleged infringing material taken down. For instance the US DMCA would apply to all companies operating under US law (eg Google, Facebook etc) irrespective of where the actual local server was located. For companies within the EU the correct authority for taking down infringing material is Article 14 of the EU eCommerce Directive. Under the DMCA and Article 14 of the eCommerce Directive, hosting companies are generally exempt from liability for infringement that tthey are unaware of, and so their place of operation usually won't feature in the matrix when it comes to deciding forum conveniens. The location of the servers (or more accurately, the registered office of the company operating the servers) is also relevant when it comes to any order such as an injunction, made by the deciding court. The England and Wales High Court, for example, has no authority to tell a company in the USA to stop doing something, although the successful claimant would usually be able get the injunction enforced by the US courts if it meets US legal standards, but this will be costly.

So to summarise, there is no neat and simple answer. Much depends on the claimant and his ability to fund, and his appetite for, complicated litigation, when he is considering how to assert his rights.





*This is just for the sake of re-using your examples. In fact the Conan Doyle Estate has very little it could license with respect to the last 10 Sherlock Holmes stories. By most measures the Estate effectively lost the case against Klinger
Hi Andy,

Thank you very much for your very detailed response! It is definitely something for me to read and reread - but I guess simply but, as it is one of those areas of law with no answer, I guess I can only act on best faith ...

I guess 'area of harm' is a useful way to consider it - as a creator (vs. a distributor) I am more likely to use the (formerly-)copyrighted elements in new pieces of work than I am to just redistribute the original text. Hopefully, then minimal harm to the estates.
Hopefully as time goes on, this becomes less of an issue ... the only reason this is a case is because American law has to be difficult and in their wisdom decided everything between 1926 and 1978 is copyrighted from publication for 95, where as otherwise it would've been life+70 like it is in Britain.
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Re: Dealing with global copyright lengths

Post by AndyJ »

Hi imaginewizard,

Yes it's complicated navigating your way around the various national treatments of copyright in the nineteenth and early twentieth century. And just so you are clear, your statement "everything between 1926 and 1978 is copyrighted from publication for 95 [years]" is not quite right. Before the 1976 US Copyright Act a work had to be registered and to have displayed a copyright notice (something like © Elmer Fudd 1955) in order to gain copyright. Initial registration lasted for 28 years and it could be renewed in the last year of that period for a further 28 years, ie a total of 56 years. If the initial registration did not occur, the work was never entitled to have copyright protection. How the 1976 Act dealt with works already in existence before the Act came into force is immensely complicated and is summarised in this chart produced by Cornell University. Just to take two specific examples, anything published between 1927 and 1977 without a copyright notice was not given any new protection by the 1976 Act. Similarly a work published in the USA between 1927 and 1963 with a correct copyright notice but the registration was not renewed, also failed to gain any new protection from the Act. And note that there are all sorts of caveats about foriegn works, which of course would include the Winnie the Pooh stories.
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