What is broadcast copyright? And also on multiple authors ...

[imaginewizard]

UK copyright law makes mention of 'broadcast copyright' - is anyone able to help me understand what exactly this is and how it differs from any other copyright?

For example - the broadcast of British TV episode in 1963, does the copyright of the elements of this episode last 50 years as it is a broadcast, or does it last 70 years after the death of the last surviving author (also on that point, does TV content work like films and only count the director, writer and composer, or is it all 'authors' (and how is that defined)?

Actually I guess a quick follow up RE: the multiple authors principle - is the intent something like this hypothetical example - the composer for a film died in 1980, and the writer/director died in 1985. In 2050, because 70 years since last author death has not passed, then I am assuming the film in its entirety is still considered copyright, but does the soundtrack on its own become public domain? Or lets flip it around, the writer/director dies 5 years prior instead - the complete film would still be copyrighted until 2055, but what about the characters and the dialogue - or even a version of the film with the soundtrack (or all audio) removed? Is that public domain, and only the visuals + soundtrack together make the still copyrighted work?

Thank you!

[AndyJ]

Hi imagewizard,

Broadcast right forms one side of the so-called 'communication to the public right'; the other part is known as the 'making available right'. A copyright owner has three fundamental rights: the right to authorise copies to be made of his work; the right to distribute the work and the right to communicate the work to the public. In essence the last two of these cover publishing in hard copy form (on paper or vinyl etc) and publishing electronically. The electronic publication covers broadcasting at a fixed time and place, whereas the making available version means that the work can be accessed at a time and place chosen by the member of the public. In the real world, broadcasting is done by broadcasters to a wide audience all at the same time in a particular region or territory, while the making available right is a one-to one communication such as streaming, for which there are, generally speaking, no temporal or territorial boundaries.

As you have identified, none of these rights exclude the existence of underlying rights such as the copyright in a drama or musical performance. Where broadcasting etc differs from the original rights in literary, dramatic, musical and artistic works is that while the latter have a duration based on the lifetime of the author, the former (along with sound recordings) have a fixed duration which is triggered by the date of first publication or broadcast. Thus a repeat of a Dr Who episode 10 years after the original broadcast does not re-start the clock on the broadcast right.

The way this works in practice is that the author, let's say of a drama, authorises the BBC to record and broadcast his play. Once that work in that form (same cast, stage direction etc) is a broadcast, the BBC can, usually, then sell the rights of that broadcast to, say ABC in Australia, and the ABC do not need to get a separate permission from the author to use his play which is within the broadcast. The same appilies to the broadcast of a musical performance etc. Once the period of protection in the broadcast has ended (after 50 years in the UK) then the broadcast enters the public domain. However that doesn't automatically mean that anyone can publish an early Dr Who episode first aired in 1969, unless of course they had access to a BBC mastertape of the programme as it was broadcast. If you had a home recording (unlikely from 1969, but bear with me) then that would have been an infringing recording and so broadcasting or making it available now would amount to infringement even though the original copyright in the broadcast had expired. And in theory at least, someone doing that could be sued both by the BBC as broadcaster, and the author of the screenplay, music etc because their original permission to the BBC did not include the right for someone to make an illegal copy of the broadcast. In practice I don't think this sort of joint suit has ever been launched. Just for the sake of clarity, I should add that the Copyright Designs and Patents Act 1988 provides an exception to allow the taping of programmes (TV or radio) off air for strictly personal and private use (known as time-shifting) but this exception is immediately made void if the recording is subsequently released or made available to an audience outside the person's immediate family or household.

You mention films. These are hybrid works. You would think that they were similar to broadcasts (and indeed they were once treated in much the same way). However following pressure from the Hollywood studios, the approach changed and today films are works of joint authorship, shared between the producer and the principal director. As you mention, the duration of copyright in a film is based on the lifetime of the last surviving author plus 70 years after his/her death. The music in a film is only treated separately if it has been released separately eg on a music CD. The music in the soundtrack within the film does not have a separate duration to the film itself, if, say, the composer of the music outlived the director and producer of the film. And a film within a broadcast (for instance, one which had been cut to fit neatly into the schedule, or to accommodate ad breaks) would still be a broadcast and subject to the 50 year duration, and not the full lifetime plus 70 years which applied to the cinema/movie theater version.

It's all pretty complicated and I have omitted lots of detailed stuff (satellite broadcasts, cable TV etc) in order to keep it as simple as possible. And a great deal of the actual detail in each specific case will be covered in contracts between authors and broadcasters. For instance the author of a play may only release the rights to broadcast his play within a specific territory or language, and can authorise whether the broadcast can be repeated or released on something like the BBC iPlayer or other catchup TV service. There may be other stipulations such how much editorial freedom the broadcaster has, particularly if the writer has a lot of clout. However I hope this answers your fundamental question.

[imaginewizard]

Hi Andy!

Thanks again for a detailed answer! This has helped differentiate how the copyright of the actual work differs from the copyright of a broadcast of said work. So in a sense, a broadcaster streaming out a work is creating a new piece of work they own the copyright to, independent of the original performance. A bit confused on say the film example - I suspect in real life this is all cleared up with licensing (for example if you licensed 'Godzilla' to Channel 4 to broadcast, they'd likely be a license clause revoking their rights to release the version of the film they now own the copyright to or something), but if that didn't happen, in theory the cut version with the ad breaks is a different piece of work with a smaller copyright length even though it contains identical (if perhaps slightly less) content?

So to confirm the music questions:
if a composer who released a soundtrack dies, 70 years later the music from the soundtrack would be public domain, but the music in the film would not be, even if they are identical (and so I imagine, in practice, the latter is essentially cancelled out). And so would 70 years after the death of the composer not mean a version of the film with the soundtrack removed was in public domain (could I not say I was adapting out the public domain elements of the work, e.g. the visuals - which will almost certainly be easy to do in 70 years time, if not within the next decade)? Or if not the footage, the elements from the writing?

Many thanks! Appreciate the help understanding!

[AndyJ]

Yes, I think you've got the film as a broadcast bit OK. With the music it's complicated because there are different scenarios by which music comes to be in a film. For instance the composer may be commissioned to write specially for the film and it may well be that the film company acquires all the rights to the music. This applies mainly with incidental music rather than, say, main title tunes or songs. If this scenario occurs in the USA, it is probable this would be treated as 'work-for-hire' which means that the copyright in the music then has a fixed duration of 95 years from the date of release of the film. In this scenario the copyright in the music and in the film itself could end at different dates, since the overall film copyright is based on the lifetime plus 70 years of whichever lives the longest between the producer and director.

Alternatively, the composer may retain his copyright in which case he merely licenses the film company to use his music and he can still put out an album of the music, separately from the film. Then there's another scenario where the song or music has already been released and the film company comes along and asks to use it in their film. This is known as sync rights, and in that case it's unlikely that the film company will acquire the full copyright, just the right to use it in their film.

Don't get too distracted by the film soundtrack version. All the law says is that if you are legally showing the film (or broadcasting or streaming it) then that act does not infringe the copyright in the music incorporated in that soundtrack; if you play the sound track separately from the film then the film's copyright no longer applies to the music. This is set out, rather inelegantly, in section 5B of the Copyright Designs and Patents Act 1988, but you should be aware that other jurisdictions do things slightly differently.

I'm not sure if that clarifies things or not. However if you are actually thinking of doing something like this for real, then you really need to get some specific legal advice before going ahead, and don't just rely on my general explanation of the legal position. Hopefully, you are just asking hypothetically!

[imaginewizard]

Hi Andy,

Yep absolutely hypothetical - as an independent creator, I've always had an interest in the nuance of copyright and how it both protects and restricts me - up until recently however I'd been content with the extent of my personal study being around things like 'how does fair use/fair dealing allow me to justify using other people's materials in my work' when I create commentary/satirical/etc. pieces.

The coming of Copyright Law Day and with it the movement of Winnie-the-Pooh into public domain lead me to start reading into aspects of global copyright differences (as you'll remember from my first forum post) and so from that I've come across what I am asking here when I was looking at British copyright lengths and spotted 'broadcast' and was confused as to what that meant.

Thank you for your further clarifications - I understand the broadcast part better now, although with my soundtrack question (which I may have muddled as it's not actually related to the broadcast question, it just occurred to me as I was writing my first question): it was less about if how one could use the soundtrack independent of the film and more if one could use the film independent of the music.

So of the multiple authors (writer, director, composer) - both the writer and director have died more than 70 years ago (in a sense, those who have authored the visual aspects of the film), but the composer hasn't been dead for 70 years. If one removed the soundtrack from the film (basically all the composer's contributions), would the rest of the film be considered public domain?

Many thanks again!

[AndyJ]

Hi imaginewizard,

OK, there was at least one crossed wire in our previous exchange. Just to be clear, generally speaking most of what I have said so far on this topic is based on UK law. That is important to bear this in mind because other jurisdictions, such as the USA or EU member states, have different ways of treating subjects like broadcasts or films (motion pictures in American legal parlance) when it comes to copyright. You refer in passing to one such difference. Under UK copyright law the current* duration of the protection for films is based on the lifetime plus 70 years of the longest surviving of the following people: the film's principal director, the author of the screenplay, the author of the dialogue and the composer of music specially created for the film (see section 13B). This is slightly at odds with the definition of the author of a film, which is defined in section 9(2)(ab) as the producer and the principal director, but we don't need to worry about that here.

However in the USA the rules are not so rigid and most cases (certainly in the case of most major films) the whole motion picture will be treated as a work for hire, meaning that corporate copyright (which lasts for 95 years from first publication or 120 years from the creation of the work) will apply, rather than the term of protection being based on any set of individuals. It is also possible to register the copyright in a motion picture in the name of certain key individuals, such as the director or cinematographer etc, provided that the US Copyright Office is satisfied that the named individuals made a significant creative contribution. However in both cases the film will be a work of joint authorship. In the EU there is no standard rule about who is the author of a film provided that the director at least is among them, and it is left to each member state to decide to include others. EU law is more precise about the term of protection for films, and this is substantially the same as section 13B of the CDPA, noted above. The Berne Convention also leaves the decision about authorship to the legislation of the individual signatory nations (see Article 14bis, (2)(a)), and only says that signatories may provide for a minimum term of protection of 50 years from publication, or the creation date ((Article 7(2)).

You didn't really ask about any of that but I thought it was important to set it out by way of background. So let's come to your actual query, which was, as I understand it, about showing the film without the sound track, because the composer of the music was the last to die and this was reason for the film as a whole still being in copyright. Unfortunately, this wouldn't work, under either the US or UK system, because in both cases the film is treeated as a work of joint authorship and this means that the individual contributions cannot be split out of it to avoid infringing any individual's contribution. The same would apply the other way round where the soundtrack (including dialogue and sound effects etc as well the music) was played without the visual part. Clearly the director and editor (assuming the later was treated as one of the authors under the US system) would have had some input into the contents of the soundtrack. This would be particularly evident in a director's cut version of the film which might either include new soundtrack, or exclude some of the original soundtrack. Neither of these changes would have necessarily have had any input from, for instance, the composer.

I hope that helps.



* Prior to 1995 under UK law the term of protection for a film was 50 years from the end of the calendar year in which it was made, or if it was released before the end of that period, 50 years from the end of the calendar year in which it is released.