Hi,
I am trying to start a career as a filmmaker by way of making a short film. There is a short story by a late author that I would very much like to base it on, but there is some question about its copyright status. I am hesitant to make public the name of the short story or its author at this time, so I will point out the details as best I can. If the name of the work in question is necessary for someone to give me a definite answer, could you please send me a PM?
The short story was first published in the UK in 1906 as a collection of short stories, all by the same author, in the form of a book. The author died in 1951.
I understand that, in general, copyright on literary works expire 70 years from the end of the calendar year of the author's death. This would seem to indicate that the work is still in copyright, and will remain so until 2022. However, in 1906, The Copyright Act 1842 (5 & 6 Vict. c. 45) was in operation. This act provided copyright protection for 42 years from the publication of the work, or the lifetime of the author and 7 years thereafter, whichever was the longer. Under this act, the work would have gone out of copyright in 1958. However, in the 1911 Act the term of author's copyright was extended to the lifetime of the author and 50 years thereafter. I understand that this act repealed the previous acts. But, was it retrospective in effect to works first published before 1 July 1912, when the act came into force, or did the repeal apply in effect only to works first published after 1 July 1912?
Based on my interpretation of everything I have read so far, the succeeding copyright acts of 1956 and 1988 were not retrospective in the effect that they revived any lapsed copyrights. If I am correct so far, the work would have gone out of copyright in 1958 and remained so up to the point that The Duration of Copyright and Rights in Performances Regulations 1995 (SI 1995/3297) came into force on 1 January 1996? This extended copyright protection to the life of the author plus 70 years. It contained a provision which caused certain expired copyrights to revive. However, it goes on to state that the application of new provisions apply “to existing works in which copyright expired before 31st December 1995 but which were on 1st July 1995 protected in another EEA state under legislation relating to copyright or related rights.” I take it this means that if the work was out of copyright in the UK on 1 July 1995, it would have been revived only if it were still protected in another EEA state. I do not know if it was or not.
If it was, and if it is in fact so that the work was “revived” by the regulations, meaning if it had gone out of copyright in the UK, I have one more way in which to go. The regulations state that “It is not an infringement of revived copyright in a work to do after commencement anything which is a restricted act in relation to the work if the act is done at a time when, or is done in pursuance of arrangements made at a time when, the name and address of a person entitled to authorise the act cannot by reasonable inquiry be ascertained.” The Intellectual Property Office sum this up in their FAQs as “doing something that would infringe copyright at a time where it is not possible by reasonable inquiry to ascertain the name and address of the copyright owner does not infringe revived copyright.” I could only use this if the work was out of copyright in the UK on 1 July 1995. Hence, this is the main question that I am trying to find an answer to.
I have been making genuine efforts to find the name of the executor of the author's literary estate since July this year and I have not been successful. I did, however, find the literary agency working for the estate and sent them a letter in September with a view to acquiring the rights to make a short film adaptation of the short story. They acknowledged receipt of my letter, but still have not given any indication that they will ever get back to me with an actual decision or that they have even contacted the executor of the literary estate regarding my letter. I have sent them several reminders. It seems reasonable to me to assume that the copyright owner's literary agency would have the name and address of the copyright owner. Would it be reasonable for me to ask the agency to give me this information and would that qualify as making a “reasonable inquiry” as referred to in the 1995 regulations? If they refuse to furnish me with this information or if the executor of the estate will not authorize them to give it to me, would they have reduced power to then use the same 1995 regulations to take legal action against me for copyright infringement, in the event that it turns out that the work is still protected?
Thank you for taking the time to read this. Any answers or any observations concerning the process I have been following would be most appreciated.
Copyright on literary works published before 1 July 1912
Hi JD,
Firstly congratulations on having navigated your way through a century and a half of legislation from 1862 to the present day.
To answer your first question, the 1911 Copyright Act did apply retrospectively to works created before its commencement date of 1 July 1912. This detail can be found in section 24. So as you correctly state, from the commencement date, the term of copyright was determined by the date of death of the author, so this would have meant the author's works would have entered the public domain on 1 January 2002 (ie 1951 plus fifty years) And so since the copyright term was still running when Duration of Copyright and Related Rights Regulations 1995 (SI 1995/3297) came into force (on 1 January 1996) the changes brought in by these Regulations do apply retrospectively, and thus the term now runs to midnight on 31 December 2021. This is because of Regulation 16c:
So that leads on to your problem of trying to find the current owner of the copyright. This is very often a difficult task and so you have been fortunate to locate the literary agency connected to the estate. But if the agents appear to be unwilling to help you to contact the estate there is little you can do to compel them. It's unfortunate that the 1911 Act is no longer in force, because it made provision for a compulsory licence to obtainable after the author's death, if the current owner of the copyright refused to publish or allow the work to be performed, which is somewhat similar to your predicament.
All I can suggest is that you continue to contact the literary agents. It would be helpful, if you haven't already had this, for them to confirm their exact status, since in law an agent can stand for the principal in most cases. If they are authorised to act over the licensing of the work you may be able to open negotiations with them, without recourse to the estate. If they are not, then your only course is to try and contact the present owners directly.
Finally the problem with the 'reasonable ( but fruitless) inquiry' approach is that it leads you nowhere. Even if you have been unable to contact the current owners, this does not permit you to legally assume that they have abandoned they rights and it would not be a defence if you were to be sued for infringement, although it would be strong mitigation.
You have two alternatives, wait until the work comes out of copyright, or take a massive risk that the estate have in fact forgotten or may be unaware of the particular book you want to turn into a film and so not take any action against you through ignorance.
But before doing either of those highly unsatisfactory things, I suggest you contact the Authors Licensing and Collecting Society and see if they can help or provide advice. While it is unlikely that your author was a member of ALCS, they could have details for any heir to the literary estate who might have checked to see if there were any outstanding unpaid royalties due to them.
Firstly congratulations on having navigated your way through a century and a half of legislation from 1862 to the present day.
To answer your first question, the 1911 Copyright Act did apply retrospectively to works created before its commencement date of 1 July 1912. This detail can be found in section 24. So as you correctly state, from the commencement date, the term of copyright was determined by the date of death of the author, so this would have meant the author's works would have entered the public domain on 1 January 2002 (ie 1951 plus fifty years) And so since the copyright term was still running when Duration of Copyright and Related Rights Regulations 1995 (SI 1995/3297) came into force (on 1 January 1996) the changes brought in by these Regulations do apply retrospectively, and thus the term now runs to midnight on 31 December 2021. This is because of Regulation 16c:
The reference back the Regulation 15 is not relevant to your example.Duration of copyright: application of new provisions
16. The new provisions relating to duration of copyright apply—
- (a) to copyright works made after commencement;
(b) to existing works which first qualify for copyright protection after commencement;
(c) to existing copyright works, subject to Regulation 15 (general saving for any longer period applicable under 1988 provisions); and
(d) to existing works in which copyright expired before 31st December 1995 but which were on 1st July 1995 protected in another EEA state under legislation relating to copyright or related rights.
So that leads on to your problem of trying to find the current owner of the copyright. This is very often a difficult task and so you have been fortunate to locate the literary agency connected to the estate. But if the agents appear to be unwilling to help you to contact the estate there is little you can do to compel them. It's unfortunate that the 1911 Act is no longer in force, because it made provision for a compulsory licence to obtainable after the author's death, if the current owner of the copyright refused to publish or allow the work to be performed, which is somewhat similar to your predicament.
All I can suggest is that you continue to contact the literary agents. It would be helpful, if you haven't already had this, for them to confirm their exact status, since in law an agent can stand for the principal in most cases. If they are authorised to act over the licensing of the work you may be able to open negotiations with them, without recourse to the estate. If they are not, then your only course is to try and contact the present owners directly.
Finally the problem with the 'reasonable ( but fruitless) inquiry' approach is that it leads you nowhere. Even if you have been unable to contact the current owners, this does not permit you to legally assume that they have abandoned they rights and it would not be a defence if you were to be sued for infringement, although it would be strong mitigation.
You have two alternatives, wait until the work comes out of copyright, or take a massive risk that the estate have in fact forgotten or may be unaware of the particular book you want to turn into a film and so not take any action against you through ignorance.
But before doing either of those highly unsatisfactory things, I suggest you contact the Authors Licensing and Collecting Society and see if they can help or provide advice. While it is unlikely that your author was a member of ALCS, they could have details for any heir to the literary estate who might have checked to see if there were any outstanding unpaid royalties due to them.
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