Question re: UK copyright & international reciprocation

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rerunmedia
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Question re: UK copyright & international reciprocation

Post by rerunmedia » Thu Feb 25, 2010 11:03 am

My query is with regard to live television broadcasts...

It's my understanding from a plain reading of the UK copyright statutes that live broadcasts prior to mid-1957 do not qualify for UK copyright, as they pre-date the applicable statutes.

It is also my understanding that copyrights from entities based outside of the UK are reciprocally offered protection only to the extent that would be allowed under the UK statutes. In this example, any live broadcast claimed by a foreign copyright holder that occurred prior to mid-1957 would not be offered any copyright protection at all, and any live broadcasts after that date would only be allowed 50 years of protection, dating from the end of the year of the original broadcast.

It would appear therefore, that as of this date, live broadcast material up to and including December 31, 1959 would now be considered to be in the public domain in the UK.

Are these assumptions generally considered to be correct? Is there pertinent litigation or case law that has emerged that has challenged any of the points listed above?

Thank you for any answers or assistance you can offer in this line of inquiry...

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AndyJ
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Post by AndyJ » Thu Feb 25, 2010 2:30 pm

Hi Rerunmedia,
I should preface these comments by saying I have no in-depth knowledge of this area of IP law or of any specific caselaw. However, I agree with your overall conclusions about the state of copyright in respect of broadcasts made prior to 31 December 1959, namely that they are out of copyright.
The situation with broadcasts which originated outside the UK is covered by several treaties or directives: the Berne Conventions, the Universal Copyright Convention (UCC), the Agreement on Trade Related Aspects of Intellectual Property Rights (known as TRIPS) and EU Directives (mainly 2001/29 and 2006/116). Different countries are signatories to some or all of these agreements. The Berne Conventions stipulate a minimum term of 35 years after broadcast (even where the period may be longer in the country where protection is being sought). The UCC stipulated either 25 years from the death of the author or the local period of protection, whichever was the greater. However UCC did not specifically deal with broadcasts. TRIPS stipulates 50 years from broadcast and the EU Directives also provide for copyright in broadcasts to last for 50 years from transmission (or the date that the program was made if it was never actually transmitted.
So far so good. However, if the copying (presumably off-air) occurred within the 50 year period, it would not necessarily be lawful for someone other than the original holder of copyright to re-transmit or otherwise publish the program after copyright had expired. The reason being that recording off-air by a person other than the broadcaster is only permitted for domestic use (Section70 of the Copyright Designs and Patents Act 1988). Subsection (2) of Section 70 makes a recording for any other purpose (such as hire, selling or otherwise communicating it to the public) an infringement of copyright. If the infringement was found to be by way of business, then under Section107, this would be a criminal offence.
I know of no specific caselaw on this but it is a general legal principle that if something is founded on an illegal act (the original copying within the copyright period) the subsequent action will not be legal. Obviously the foregoing only applies where recording off-air occured wiithin Britain.
And I'm sure I don't need to say, any new commercial issue of a program, say on DVD or VHS etc, would attract copyright in its own right from the time of first publication in that media. So since a broadcast 'dies' immediately it is transmitted, it seems to me the only legitimate source from which to make copies would be the original broadcaster's master tape or film, assuming such a thing ever existed in the period we are talking about. Clearly where these master recordings exist within the broadcaster's archive, they will control any physical access. Where copies are held in other archives (such as the British Library etc) there are moves currently going through Parliament (in the Digital Economy Bill) to get these works declared “orphan works” so that they can be put in the public domain for researchers and others to access.

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Post by rerunmedia » Tue Mar 02, 2010 6:12 am

AndyJ:

Thanks very much for your supplementary information-- it would seem to reinforce my understanding of the existing UK statutes and treaty obligations, but I just wasn't certain whether or not I had missed any major court cases, pertinent litigation or interpretations to the contrary.

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