An old magazine was printed in a certain year, and their masthead states that the contents are copyright to the publisher.
1. Presumably, the author of the text and images sold their copyright to the publisher, who is now the copyright owner (unless they sold it on). ie. The original authors have no claim whatsoever?
2. So am I right in thinking that copyright expires 70 years after publication, even if I don't know the authors, and the publisher may do.
3. Or does the publisher retain copyright until 70 years after the death of each original author?
4. I assume the same answer applies to either a book, journal or newspaper, where the copyright is help by a publisher or company?
Magazine copyright owned by a company
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iantresman
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Hi iantresman,
Virtually all publications will carry a copyright notice which either claims or implies that the publisher 'owns' the copyright in the entire publication. Under UK law this is technically correct in the sense that a publisher will own a special form of copyright in the typographical layout which lasts for 25 years from the date of publication, irrespective of the actual ownership of copyright in the individual articles etc which may be contained in the book, magazine or newspaper etc. As you say, in most instances it is probably the case that the author has signed over his copyright to the publisher, or if the author is an employee of the publisher (as in the case of staff journalists) then the employer is automatically the first owner of copyright in any work produced by the employee in the course of his/her employment duties. But even in the cases where an author has retained their copyright and merely licensed the publisher to use their work, (either on an exclusive or non-exclusive basis) the publisher does not commit an offence in making a false claim to copyright and so can do so with impunity.
In the UK (and all other EU member states) the copyright term is calculated on the lifetime of the author plus 70 years, irrespective of who is the actual owner of the copyright. Article 1(3) of the EU Copyright Term Directive says that only when the author is anonymous or uses a pseudonym does this rule become replaced by the one which you quote, namely that the copyright term is 70 years from the date of first publication. But this is different to the situation in which the author is unknown, or if known cannot be traced. As you mention, in many cases where an article appears without a byline, the publisher is likely to know the name of the author and so that would not meet the EU criterion of 'anonymous'.
You may think that this is a rather silly distinction, as in all probability the publisher might also know the name of an otherwise anonymous or pseudonymous author. However the reason for this approach lies in the way international agreements on copyright have developed over the past century and a half, rather than any rational approach to the issue.
UK law tackles this problem in a slightly differently to the way the EU sets it out in the Copyright Term Directive. The actual wording of section 12 (3) of the Copyright Designs and Patents Act 1988 is as follows
I'm not sure whether in question 3 you were asking if, where copyright in the individual articles is owned by the publisher, this would mean the whole journal etc would remain protected by copyright until the last of the authors had died more than 70 years ago. If so, then the answer is no. Each article would be subject to the term determined by the lifetime of the individual author of the piece. Only works which are classified as works of joint authorship would have a copyright determined by the longest surviving of the authors. Joint authorship occurs when two or more individuals collaborate on a work in which their individual contributions cannot be discerned within the overall finished work. So Lennon and McCartney wrote and composed many of the Beatles songs together in such a way that they shared the whole writing process making these songs joint works, whereas in a Gilbert and Sullivan opera, WS Gilbert wrote the lyrics and Arthur Sullivan the music, so their operas were not works of joint authorship.
So assuming that your question is not hypothetical and you would actually like to use an article for which you cannot trace the actual author, and in all probability the publisher ceased to exist many years ago, the solution may lie in obtaining an orphan works licence. This is a comparatively simple procedure, involving a diligent, but fruitless search for the author and the payment of a small fee, in exchange for which you get a 7 year licence to use the work which absolves you from any liability for infringement, should the author or their heirs subsequently come forward.
However there is one other route worth checking first. If, by making some reasonable assumptions, you deduce that the author probably died before 1 Jan 1947, you can assume that copyright in his/her work has expired. The authority for this is section 57 CDPA. So as an example, say the article appeared in a newspaper dated 1890. A reasonable assumption might be that the author was not less than 20 years of age at the time and the average life expectancy for someone born at that time was 75 years, the author can reasonably be assumed to have died about 1945. Thus the work would qualify under the s 57 rules as being out of copyright even though the actual identity of the author is unknown.
Virtually all publications will carry a copyright notice which either claims or implies that the publisher 'owns' the copyright in the entire publication. Under UK law this is technically correct in the sense that a publisher will own a special form of copyright in the typographical layout which lasts for 25 years from the date of publication, irrespective of the actual ownership of copyright in the individual articles etc which may be contained in the book, magazine or newspaper etc. As you say, in most instances it is probably the case that the author has signed over his copyright to the publisher, or if the author is an employee of the publisher (as in the case of staff journalists) then the employer is automatically the first owner of copyright in any work produced by the employee in the course of his/her employment duties. But even in the cases where an author has retained their copyright and merely licensed the publisher to use their work, (either on an exclusive or non-exclusive basis) the publisher does not commit an offence in making a false claim to copyright and so can do so with impunity.
In the UK (and all other EU member states) the copyright term is calculated on the lifetime of the author plus 70 years, irrespective of who is the actual owner of the copyright. Article 1(3) of the EU Copyright Term Directive says that only when the author is anonymous or uses a pseudonym does this rule become replaced by the one which you quote, namely that the copyright term is 70 years from the date of first publication. But this is different to the situation in which the author is unknown, or if known cannot be traced. As you mention, in many cases where an article appears without a byline, the publisher is likely to know the name of the author and so that would not meet the EU criterion of 'anonymous'.
You may think that this is a rather silly distinction, as in all probability the publisher might also know the name of an otherwise anonymous or pseudonymous author. However the reason for this approach lies in the way international agreements on copyright have developed over the past century and a half, rather than any rational approach to the issue.
UK law tackles this problem in a slightly differently to the way the EU sets it out in the Copyright Term Directive. The actual wording of section 12 (3) of the Copyright Designs and Patents Act 1988 is as follows
Here the words "unknown authorship" appear to widen the category considerably. But 'unknown' here means unknown to anyone, and so it would not include authors of articles etc who are or were known to the publisher, but who may not have been identified to the reader.(3) If the work is of unknown authorship, copyright expires—
- (a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or
(b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available,
I'm not sure whether in question 3 you were asking if, where copyright in the individual articles is owned by the publisher, this would mean the whole journal etc would remain protected by copyright until the last of the authors had died more than 70 years ago. If so, then the answer is no. Each article would be subject to the term determined by the lifetime of the individual author of the piece. Only works which are classified as works of joint authorship would have a copyright determined by the longest surviving of the authors. Joint authorship occurs when two or more individuals collaborate on a work in which their individual contributions cannot be discerned within the overall finished work. So Lennon and McCartney wrote and composed many of the Beatles songs together in such a way that they shared the whole writing process making these songs joint works, whereas in a Gilbert and Sullivan opera, WS Gilbert wrote the lyrics and Arthur Sullivan the music, so their operas were not works of joint authorship.
So assuming that your question is not hypothetical and you would actually like to use an article for which you cannot trace the actual author, and in all probability the publisher ceased to exist many years ago, the solution may lie in obtaining an orphan works licence. This is a comparatively simple procedure, involving a diligent, but fruitless search for the author and the payment of a small fee, in exchange for which you get a 7 year licence to use the work which absolves you from any liability for infringement, should the author or their heirs subsequently come forward.
However there is one other route worth checking first. If, by making some reasonable assumptions, you deduce that the author probably died before 1 Jan 1947, you can assume that copyright in his/her work has expired. The authority for this is section 57 CDPA. So as an example, say the article appeared in a newspaper dated 1890. A reasonable assumption might be that the author was not less than 20 years of age at the time and the average life expectancy for someone born at that time was 75 years, the author can reasonably be assumed to have died about 1945. Thus the work would qualify under the s 57 rules as being out of copyright even though the actual identity of the author is unknown.
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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iantresman
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Thanks for that, your reply is probably one of the most complete and detailed I have ever had from a forum! Thank you.
I wonder how many publishers think they own the copyright of the author, but actually have only the typographical layout, and no longer have the written licenses to prove it. The only people I can see benefiting are the lawyers!
Thank you again, much appreciated.
I wonder how many publishers think they own the copyright of the author, but actually have only the typographical layout, and no longer have the written licenses to prove it. The only people I can see benefiting are the lawyers!
Thank you again, much appreciated.