Country to country variation

[darinfan]

I am never quite sure about how the copyright law of one country affects another, so I was wondering if I could give some examples and see how they play out.

Let's say a film was made and copyrighted in Hollywood in 1925. This will be coming out of copyright in America on January 21st 2021. That much I understand. But will it also be coming out of copyright in the UK or Europe? My assumption is that the answer is yes, given that films that have fallen into the public domain in America are freely available on DVD over here in the UK, but a verification would be useful. And is there a difference between a film that has fallen out of copyright through the 95 year rule in America, and a film by a poverty row studio in the 1930s that never renewed the copyright after 28 years?

The other example is, let's say a novel by an American author was published in the US in 1921. In America, that will already be out of copyright. But let's say that author didn't die until 1960. Going by UK copyright law, that would mean the works by her don't come out of copyright until 2030. But is that only if she was a British author? As she was American, does the copyright in that 1921 book become public domain here in the UK because it has in her home country?

I find these issues complicated, and one time I can convince myself one way and another time I'll convince myself the other! I realise the answers will be different depending on the nationality of the author or the country of origin of the film. For example, if a book by a British author is out of copyright in America, it doesn't mean it's out of copyright here (for example, the early Agatha Christie novels that are slowly becoming public domain in the States). But the reverse also seems to be true - the Sherlock Holmes books are out of copyright in the UK, but some are still in copyright in America!

Any help much appreciated!

[AndyJ]

Hi darinfan,

You have every right to be confused. The way in which the USA calculated its copyright term didn't change until the 1976 Copyright Act so it will be some time yet before things become simpler to sort out. The USA has always played by its own idiosyncratic rules when it comes to copyright, and these days its trade negotiators expend a lot of effort to ensure that treaties like ACTA etc include favourable conditions which protect the interest of Hollywood and the American recording industry. Yet the USA only signed up to the main international treaty which regulates copyright provisions between nations (the Berne Convention) as recently as 1 March 1989, approximately 100 years after the treaty was first signed in Berne by the founding states, including the UK.

And we can turn to the Berne Convention for some help with your questions. The convention sets out a number of rules about what kind of reciprocal protection should be provided, what the definition is for the country of origin for any given copyright work, and sets the minimum term of protection as the lifetime of the author plus 50 years after his/her death. And in particular Article 7 contains the following provision:

(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work

So as that provision implies, we need to look at UK law to see exactly how it treats 'foreign' works. We find that in Section 12 (6)* of the Copyright Designs and Patents Act 1988, which says :

(6) Where the country of origin of the work is not an EEA state and the author of the work is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (5).

So using those two sources we can see that in your first question, once a work which originated in the USA comes out of copyright there, it also comes out of copyright here in the UK, unless the author of the work is a citizen of an EEA state (ie all EU member states plus Norway, Iceland, Switzerland and Liechtenstein). And for the sake of completeness it doesn't make any difference how the work came into the public domain in the USA, whether that was because the term of registration ended or due to the death of the author or due to the transitional 95 year rule you mentioned.

The same applies to your second question except that where books are concerned, you usually find there are two different editions, one for each market, and so provided both editions are published in their respective territories within 30 days of each other, each will be entitled to the copyright term of that country. This is because the Berne Convention rules concerning the country of origin allow for the 'simultaneous' publication in two territories, where each is treated as the 'first' publication, so creating two countries of origin. So assuming that this happened in the case of the American author you mentioned, copyright in any of her works which were published in the UK will continue until the end of 2030.

And the anomalies you talk about in your third paragraph come about because the USA was not a member of the Berne Convention at the time that Agatha Christie's and Conan Doyle's American editions were published. In the case of Christie, her copyright in the UK is firmly governed by UK law irrespective of what happens in the USA since she was a UK citizen; whether her heirs or publishers try to fight the inevitable flood of print-on-demand books once they fall into the public domain in the USA remains to be seen. The Estate of Conan Doyle seem determined to fight on to the last minute over those of his works which remain in copyright there.

* This section is one of the areas of law which will be changed on 1 January 2021 after the UK has left the transitional membership of the EU. The reference to EEA states will be deleted and 'United Kingdom' inserted instead. Full details here: The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019

[darinfan]

Hi darinfan,

You have every right to be confused. The way in which the USA calculated its copyright term didn't change until the 1976 Copyright Act so it will be some time yet before things become simpler to sort out. The USA has always played by its own idiosyncratic rules when it comes to copyright, and these days its trade negotiators expend a lot of effort to ensure that treaties like ACTA etc include favourable conditions which protect the interest of Hollywood and the American recording industry. Yet the USA only signed up to the main international treaty which regulates copyright provisions between nations (the Berne Convention) as recently as 1 March 1989, approximately 100 years after the treaty was first signed in Berne by the founding states, including the UK.

And we can turn to the Berne Convention for some help with your questions. The convention sets out a number of rules about what kind of reciprocal protection should be provided, what the definition is for the country of origin for any given copyright work, and sets the minimum term of protection as the lifetime of the author plus 50 years after his/her death. And in particular Article 7 contains the following provision:

(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work

So as that provision implies, we need to look at UK law to see exactly how it treats 'foreign' works. We find that in Section 12 (6)* of the Copyright Designs and Patents Act 1988, which says :

(6) Where the country of origin of the work is not an EEA state and the author of the work is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (5).

So using those two sources we can see that in your first question, once a work which originated in the USA comes out of copyright there, it also comes out of copyright here in the UK, unless the author of the work is a citizen of an EEA state (ie all EU member states plus Norway, Iceland, Switzerland and Liechtenstein). And for the sake of completeness it doesn't make any difference how the work came into the public domain in the USA, whether that was because the term of registration ended or due to the death of the author or due to the transitional 95 year rule you mentioned.

The same applies to your second question except that where books are concerned, you usually find there are two different editions, one for each market, and so provided both editions are published in their respective territories within 30 days of each other, each will be entitled to the copyright term of that country. This is because the Berne Convention rules concerning the country of origin allow for the 'simultaneous' publication in two territories, where each is treated as the 'first' publication, so creating two countries of origin. So assuming that this happened in the case of the American author you mentioned, copyright in any of her works which were published in the UK will continue until the end of 2030.

And the anomalies you talk about in your third paragraph come about because the USA was not a member of the Berne Convention at the time that Agatha Christie's and Conan Doyle's American editions were published. In the case of Christie, her copyright in the UK is firmly governed by UK law irrespective of what happens in the USA since she was a UK citizen; whether her heirs or publishers try to fight the inevitable flood of print-on-demand books once they fall into the public domain in the USA remains to be seen. The Estate of Conan Doyle seem determined to fight on to the last minute over those of his works which remain in copyright there.

* This section is one of the areas of law which will be changed on 1 January 2021 after the UK has left the transitional membership of the EU. The reference to EEA states will be deleted and 'United Kingdom' inserted instead. Full details here: The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019

A wonderfully clear reply, thank you very much. This helps a great deal.

Just to verify the books issue, if you would. If, for example, John Smith (an American) published a short story or an article in a magazine in America in 1921, but didn't publish it elsewhere within 30 days, the American copyright term would be the one to go by?

Thanks again.

[AndyJ]

Hi darinfan,

Yes, the country of origin in that case would be the USA and so the only law you need to worry about is US law; as it's out of copyright there, it's out of copyright everywhere.

[darinfan]

Hi darinfan,

Yes, the country of origin in that case would be the USA and so the only law you need to worry about is US law; as it's out of copyright there, it's out of copyright everywhere.

You're a star. Thank you for all your help.