Hi,
I'm in the process of working out the application of the s.12(6) & s13B(7) CDPA shorter term rule to US copyright works and also the potential scope of when a US work could qualify as a UK work (excluding simultaneous publication) and have run into a number of issues/queries that I'm hoping someone here can assist with! Sorry in advance for the long questions and grateful for any help you all can provide.
1. I originally thought that under the CDPA 1988 the shorter term rule could generally be applied retrospectively to any US works that did not qualify as a UK work via simultaneous publication, in order to calculate whether a US work might be available for use in the UK due to operation of shorter term principle. However there are several online (e.g. https://publicdomainimagelibrary.com/copyright-rules/) that assert between 1956 and 1996 there was no short term rule applied in the UK and its re-introduction in 1996 was not retroactive, or even assert there was no shorter term rule at any point pre-1996 in the UK. In summary – what is the correct position to adopt with a US work published in the US pre-1996 (e.g. 1935) – can I apply the shorter term rule for measuring copyright protection afforded in the UK or not?
2. The scope of when a US published work could qualify as a UK work (outside of where simultaneous publication has occurred) is also somewhat confusing. It would be extremely helpful if someone could clarify (if possible) whether the broad scope of 13B(7) CDPA & s.15A(5)(a) can be applied retrospectively to a work published pre-1989 before USA joined Berne convention to potentially qualify a US work as now also qualifying as a UK work because for example the film headquarters were actually in the UK?
3. If the above CDPA 1988 provisions cannot be applied to older works, i assume I would need to review the applicable 1911/1956 Acts provisions that applied when the US work was originally published. If so it would be extremely helpful if anyone had any suggestions as to the most common exceptions that could apply (e.g. I believe there may have been a broad scope under the 1911 Act applied to British citizens living in the US who published a work there, that it could also be considered a UK copyright work?)
4. In the US it appears the copyright term is measured for pre-1978 works from date of publication. It’s generally recognised that publication is the distribution of copies to the public and that the theatrical release of a film does not constitute date of publication. Yet – it appears most calculations just treat US term of protection as starting with theatrical release of movie – am I missing something here or could this potentially cause some disputes as to copyright term?
US Works, shorter term rule, and use in UK
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Re: US Works, shorter term rule, and use in UK
Hi Createacopy and welcome to the forum,
There are several different aspects to your overall question.
Let's start with the doctrine of the shorter term. This came into being with the first Berne Convention of 9 September 1886. You will find it in Article 2
So that sets the legal scene in the UK at the end of the nineteenth century. All the International Copyright Acts (there were three of them) were repealed by the 1911 Copyright Act which substituted a more general provision in section 29. This authorised the issuing of Orders in Council in relation to how foreign works were to be treated for copyright purposes. In particular, subsection 29 (1)(c)(ii) says
We now need to turn to Britain's relationship with the USA at this time. On 9 February 1920 an Order in Council was issued governing the copyright conditions for works where the country of origin was the United States of America. This was a reciprocal arrangement whereby the USA also agreed to amend its 1909 Copyright Act in like manner. The gist of the Order was that works first produced in the USA would be afforded the same rights under the 1911 Copyright Act as works of UK origin. There was no mention of the shorter term rule, and therefore on its face, the Order must be read in accordance with Section 29 (1)(c)(ii) quoted above, to mean that US works would only receive the same term of protection as they would in the USA since this was shorter than the UK term of the author's lifetime plus 50 years. Generally this was the case because the US term was for upto a maximum of 56 years from the date the work was registered, or if they were not registered, no protection whatsoever. This Order was not repealed until 1957 when its provisions were replaced by the Copyright (International Conventions) Order 1957 (SI 1957/1523). This situation still obtains today even though the USA is now full member of the Berne Union. However, as the Berne Convention stipulates that all member countries must apply as a minimum the lifetime plus fifty year term, the shorter term doctrine would only apply where a member country's term was set at 50 years post mortem, and the term in the country considering what protection to apply had a longer term, as is the case in the USA and US today.
We now come to the issue in relation to films. This introduces two complications: the protection of film as a medium, and who constitutes the author when determining the duration of protection based on the author's lifetime, under the UK law.
Prior to the 1956 Copyright Act, films (as in motion pictures or movies) were not recognised by copyright law in the UK. Substantially the same situation applied in the USA under their 1909 Copyright Act. The way in which films were protected at that time was to treat them as a series of still photographs, and separately, any underlying story or script was protected as a dramatic work. And once the talkies came along, the sound track was protected as a sound recording. In this way US films were able to be registered with the US Copyright Office from the earliest days of cinema and gain protection. As is probably well known, the original 1928 Mickey Mouse cartoon movie Steamboat Willlie managed to remain in copyright right up until the beginning of this year. In the UK, where there were no formalities such as registration to comply with, early films just gained their protection in the convoluted way described below. Indeed among the few disputes involving copyright in films from this period, the majority were based on the scripts as dramatic works, which were themselves often based on books. Nobody was actually accused of physically copying films photographically.
The definition of the author of a film has also changed over time. But since you are interested in a film from 1935 let's look at the situation then. There would have been three or possibly four separate authors: the creator of the indiviual photographic frames (the cinematographer in today's terminology) would have been the author of the visual aspects of the film (although since he was probably an employee, the actual owner of the copyright would have been his employer), then the author of the script would have had his own copyright and again if he was an employee, his employer would own the copyright; next, the director of the film might have been entitled to copyright in the dramatic work which he directed, and if it was a 'talkie' the sound recordist would have been the author of the sound recording, again subject to the employment rules. This situation is somewhat similiar to the personalities who are considered the authors of present day films, but between 1957 and 1994 the author of a film was the person who made the arrangements for the film to be made, so usually the producer. In the USA the situation was slightly different in that the interested parties tended to be the major film studios, and as such they were the employers in most cases and therefore they owned the consolidated copyright once this was registered at the US Copyright Office. The general situation was that, to gain the full 56 year protection which was available, the registration needed to be renewed in the 27th year. If this wasn't done then the copyright lapsed. There was one other stipulation for a valid US copyright: the work must bear a copyright notice. Obviously most did have one among the credits, but a few companies forgot to do this and so lost out. If you are interested in a particular film, you need to trace its copyright registration history* since this will affect its subsequent status when the 1976 Copyright Act came into effect. Depending whether re-registration occurred, the film may now be in the public domain or it may retain copyright unitl 31 December 2030. You can check the situation using this useful Cornell University checklist: https://guides.library.cornell.edu/copy ... blicdomain. And there is one further complication in that, prior to the 1976 Act, most States within the USA had their own copyright legislation in addition to the Federal law. However I don't think you need to consider that here.
With regard to your paragraph 4, that's not quite right. The key date is the date of registration, although if a work is registered and then not published this can have other implications. While you are right that a public display of a work (such as a film) does not constititute publication per se, "The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication." (see section 101 of the Copyright Act 1976).
* You can find all previous US copyright registrations on the Internet Archive. The entries have not been digitized and so a manual search is required.
There are several different aspects to your overall question.
Let's start with the doctrine of the shorter term. This came into being with the first Berne Convention of 9 September 1886. You will find it in Article 2
As you are aware the USA did not join the Berne Convention until a century later, but Britain was an original signatory and brought the main provisions of the Berne Convention into British law with the International Copyright Act 1886. Section 2(3) of that Act specifically said "The International Copyright Acts and an order made under them shall not confer on any person any greater right or longer term of copyright in any work than that enjoyed in the foreign country in which such work was first produced."The enjoyment of these rights shall be subject to the accomplishment of the conditions and formalities prescribed by law in the country of origin of the work, and must not exceed in the other countries the term of protection granted in the said country of origin.
The country of origin of the work shall be considered to be that in which the work is first published, or if such publication takes place simultaneously in several countries of the Union [ie the signatories to the Berne Converntion], that one of them the laws of which grant the shortest term of protection.
So that sets the legal scene in the UK at the end of the nineteenth century. All the International Copyright Acts (there were three of them) were repealed by the 1911 Copyright Act which substituted a more general provision in section 29. This authorised the issuing of Orders in Council in relation to how foreign works were to be treated for copyright purposes. In particular, subsection 29 (1)(c)(ii) says
Again, this reinforces that the doctrine of the shorter term is firmly established in English law.the Order in Council may provide that the term of copyright within such parts of His Majesty's dominions as aforesaid shall not exceed that conferred by the law of the country to which the Order refers.
We now need to turn to Britain's relationship with the USA at this time. On 9 February 1920 an Order in Council was issued governing the copyright conditions for works where the country of origin was the United States of America. This was a reciprocal arrangement whereby the USA also agreed to amend its 1909 Copyright Act in like manner. The gist of the Order was that works first produced in the USA would be afforded the same rights under the 1911 Copyright Act as works of UK origin. There was no mention of the shorter term rule, and therefore on its face, the Order must be read in accordance with Section 29 (1)(c)(ii) quoted above, to mean that US works would only receive the same term of protection as they would in the USA since this was shorter than the UK term of the author's lifetime plus 50 years. Generally this was the case because the US term was for upto a maximum of 56 years from the date the work was registered, or if they were not registered, no protection whatsoever. This Order was not repealed until 1957 when its provisions were replaced by the Copyright (International Conventions) Order 1957 (SI 1957/1523). This situation still obtains today even though the USA is now full member of the Berne Union. However, as the Berne Convention stipulates that all member countries must apply as a minimum the lifetime plus fifty year term, the shorter term doctrine would only apply where a member country's term was set at 50 years post mortem, and the term in the country considering what protection to apply had a longer term, as is the case in the USA and US today.
We now come to the issue in relation to films. This introduces two complications: the protection of film as a medium, and who constitutes the author when determining the duration of protection based on the author's lifetime, under the UK law.
Prior to the 1956 Copyright Act, films (as in motion pictures or movies) were not recognised by copyright law in the UK. Substantially the same situation applied in the USA under their 1909 Copyright Act. The way in which films were protected at that time was to treat them as a series of still photographs, and separately, any underlying story or script was protected as a dramatic work. And once the talkies came along, the sound track was protected as a sound recording. In this way US films were able to be registered with the US Copyright Office from the earliest days of cinema and gain protection. As is probably well known, the original 1928 Mickey Mouse cartoon movie Steamboat Willlie managed to remain in copyright right up until the beginning of this year. In the UK, where there were no formalities such as registration to comply with, early films just gained their protection in the convoluted way described below. Indeed among the few disputes involving copyright in films from this period, the majority were based on the scripts as dramatic works, which were themselves often based on books. Nobody was actually accused of physically copying films photographically.
The definition of the author of a film has also changed over time. But since you are interested in a film from 1935 let's look at the situation then. There would have been three or possibly four separate authors: the creator of the indiviual photographic frames (the cinematographer in today's terminology) would have been the author of the visual aspects of the film (although since he was probably an employee, the actual owner of the copyright would have been his employer), then the author of the script would have had his own copyright and again if he was an employee, his employer would own the copyright; next, the director of the film might have been entitled to copyright in the dramatic work which he directed, and if it was a 'talkie' the sound recordist would have been the author of the sound recording, again subject to the employment rules. This situation is somewhat similiar to the personalities who are considered the authors of present day films, but between 1957 and 1994 the author of a film was the person who made the arrangements for the film to be made, so usually the producer. In the USA the situation was slightly different in that the interested parties tended to be the major film studios, and as such they were the employers in most cases and therefore they owned the consolidated copyright once this was registered at the US Copyright Office. The general situation was that, to gain the full 56 year protection which was available, the registration needed to be renewed in the 27th year. If this wasn't done then the copyright lapsed. There was one other stipulation for a valid US copyright: the work must bear a copyright notice. Obviously most did have one among the credits, but a few companies forgot to do this and so lost out. If you are interested in a particular film, you need to trace its copyright registration history* since this will affect its subsequent status when the 1976 Copyright Act came into effect. Depending whether re-registration occurred, the film may now be in the public domain or it may retain copyright unitl 31 December 2030. You can check the situation using this useful Cornell University checklist: https://guides.library.cornell.edu/copy ... blicdomain. And there is one further complication in that, prior to the 1976 Act, most States within the USA had their own copyright legislation in addition to the Federal law. However I don't think you need to consider that here.
With regard to your paragraph 4, that's not quite right. The key date is the date of registration, although if a work is registered and then not published this can have other implications. While you are right that a public display of a work (such as a film) does not constititute publication per se, "The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication." (see section 101 of the Copyright Act 1976).
* You can find all previous US copyright registrations on the Internet Archive. The entries have not been digitized and so a manual search is required.
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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Re: US Works, shorter term rule, and use in UK
Hi Andy - thanks so much for the above! Really helpful and appreciate you taking the time to set all of that out.
Just wanted to doublecheck the publication point - so would the copyright term in pre-1978 films (prior to effective date of 1976 Act) published in the US acquire protection from the date of registration or the date of fixation as a result of the 1976 Act broadening copyright protection from published works to 'fixed' works?
Separately - it sounds like there's still a bit of confusion in the UK as to the publication of films (I don't think there is a qualification like section 101 of 1976 Copyright Act) and it is arguable that a film shown in a theatre does not constitute publication and actual distribution of copies would be required? To that effect is there an argument that 'simultaneous publication' in the USA and UK would not have occurred if a film received theatrical release in the USA first, and then was "only" shown in a cinema say 12 days later in the UK? I feel like making such an argument to a US movie studio might not go down well but curious if it is legally sound? (i.e. your work was not simultaneously published in the UK because we don't consider a cinema release to constitute publication and therefore it is a foreign work under s.13B(7) and subject to this we can apply the shorter term rule)
Just wanted to doublecheck the publication point - so would the copyright term in pre-1978 films (prior to effective date of 1976 Act) published in the US acquire protection from the date of registration or the date of fixation as a result of the 1976 Act broadening copyright protection from published works to 'fixed' works?
Separately - it sounds like there's still a bit of confusion in the UK as to the publication of films (I don't think there is a qualification like section 101 of 1976 Copyright Act) and it is arguable that a film shown in a theatre does not constitute publication and actual distribution of copies would be required? To that effect is there an argument that 'simultaneous publication' in the USA and UK would not have occurred if a film received theatrical release in the USA first, and then was "only" shown in a cinema say 12 days later in the UK? I feel like making such an argument to a US movie studio might not go down well but curious if it is legally sound? (i.e. your work was not simultaneously published in the UK because we don't consider a cinema release to constitute publication and therefore it is a foreign work under s.13B(7) and subject to this we can apply the shorter term rule)
Re: US Works, shorter term rule, and use in UK
Hi again,
You've certainly caused me to scratch my head over your first follow-up question. I think I have the answer but I don't claim to be an expert on US copyright law so I am open to correction if anyone can show that I am wrong. First thing to say is that the US 1909 Copyright Act was created with no reference whatsoever to motion pictures although of course these did exist at the time, albeit in a very rudimentary form. However the problem of what to do about works which could not or would not be published was considered, primarily in the context of paintings and sculptures, but also photographs. While in the case of most written works, copyright could only be registered once publication had occurred, since part of the registration process involved depositing two copies of the published work with the Register of Copyrights, Section 11 of the 1909 Act made special provision for items which were not intended for publication. It reads:
So moving to your second point, I hope I can deal with this with more certainty. The 1956 Copyright Act provides a definition (in section 13 (10)) of what constitutes publication of a cinematograpgh film
* Since potentially the protection afforded under US copyright law might have been 56 years the US term would not have been shorter than the corresponding UK provision. However as the images only provide one element of the overall film, this is of no great importance.
You've certainly caused me to scratch my head over your first follow-up question. I think I have the answer but I don't claim to be an expert on US copyright law so I am open to correction if anyone can show that I am wrong. First thing to say is that the US 1909 Copyright Act was created with no reference whatsoever to motion pictures although of course these did exist at the time, albeit in a very rudimentary form. However the problem of what to do about works which could not or would not be published was considered, primarily in the context of paintings and sculptures, but also photographs. While in the case of most written works, copyright could only be registered once publication had occurred, since part of the registration process involved depositing two copies of the published work with the Register of Copyrights, Section 11 of the 1909 Act made special provision for items which were not intended for publication. It reads:
My understanding of the Act is that the date of registration thus became the de facto start date for the copyright of such 'unpublishable' works. However under the common law all works had nominal protection from the date the work was made. This was backed up by the state laws then in existence. The reason I say that I think that the duration was determined by the date of registration is that the Act says, in section 23Section 11. That copyright may also be had of the works of an author of which copies are not reproduced for sale. By the deposit, with a claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic or musical composition; of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing. But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies under sections twelve and thirteen of this Act where the work is later reproduced in copies for sale.
Obviously the text refers to publication, but where publication cannot or will not occur per Section 11, it seems that it is the registration date that sets the clock ticking. This is clarified somewhat by the marginal note in the original Act which reads "Copyright ends in 28 years unless renewed". This note has no legal effect but at least points to what the drafters of the Act intended.That in default of the registration of such application for renewal and extension [of the first 28 year term], the copyright in any work shall determine at the expiration of twenty-eight years from first publication
So moving to your second point, I hope I can deal with this with more certainty. The 1956 Copyright Act provides a definition (in section 13 (10)) of what constitutes publication of a cinematograpgh film
In other words, that reaffirms the fact that just showing the film, even to a paying public, did not constitute publication. Until the 1988 Copyright Designs and Patents Act, the UK law dealt with published and unpublished works in separate ways. There was a slight exception for photographs and etchings, which had just one 50 year term and didn't make any provision for non-publication (see section 21 of the 1911 Copyright Act for example). Unpublished works remained in a sort of limbo of perpetual copyright under the common law, until such time as they were lawfully published, and the fixed statutory term of copyright protection did not commence until the point of that publication. We still see the consequences of this even today, with such things as unpublished diaries and photographs, created before 1 August 1989. However Parliament has set an end date of 31 December 2039 for all unpublished works still in this limbo. Applying this legal landscape to a film made in the UK in 1935, or released here simultaneously with the release in the USA would result in the following situation: images within the film stock would have had 50 years of protection from the date they were made* (ie when the film was shot, not when it was edited) but the dramatic work and script within the film are technically still in their pre-copyright period of protection since they are unlikely to be deemed to have been published unless copies of the film were sold to the public by the rights holders or their authorised distributors. From the 1956 Copyright Act onwards, sound recordings (if relevant to the particular film) were only protected once they had been published and that protection lasted for 50 years from the date of publication. Since film soundtracks were not published as they are today, this is unlikely to be relevant. If the film in question was only released initially in the USA then none of this would apply when the film was later released in the UK as, demonstrably, the USA's term of copyright was shorter that that which UK law provided for.“publication”, in relation to a cinematograph film, means the sale, letting on hire, or offer for sale or hire, of copies of the film to the public;
* Since potentially the protection afforded under US copyright law might have been 56 years the US term would not have been shorter than the corresponding UK provision. However as the images only provide one element of the overall film, this is of no great importance.
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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Re: US Works, shorter term rule, and use in UK
Hi Andy - thanks again for the substantive response! Really helpful with understanding this chaotically complex area