70 year rule

Advice for those new to the concepts of copyright
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six gun
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70 year rule

Post by six gun » Wed Aug 10, 2011 2:28 pm

I am looking into starting a tee shirt printing business.

There are lots of interesting images, patterns and the like out there, with some of them created years ago.

The read the 70 year rule in Copyright, Designs and Patents Act 1988.

Duration of Rights

1) For literary, dramatic, musical or artistic works 70 years from the end of the calendar year in which the last remaining author of the work dies, or the work is made available to the public, by authorised performance, broadcast, exhibition, etc.

The Copyright (Computer Programs) Regulations 1992 extended the rules covering literary works to include computer programs.


So in 2011, works created by authors who died in or before 1941 are out of copyright.

I presume this is for works created in the UK, if the work were created in the USA their copyright law would apply etc.

What happens to the copyright when the last author dies up until 70 years have passed?
Are the rights part of his/her estate and inherited?
What if the author has no-one to inherit?

There are some images I am interested in. The company who owned these no longer exists. It went down the pan 20 odd years ago. The guy who owned the company is dead but he was not the author. The person who some of the images are of, he is dead.

If a piece of work is created by the employee of a company, my understanding is the company owns the rights. If it is a freelancers the freelancer can sign them over to the company or licence the work.

If a limited company owns the rights and the company is no longer in existence, what happens to the rights?
It would have been part of the assets of the company but it does not follow anyone owns them, it is not like a factory, money or land say. IP is something that might get overlooked.

I think copyright is broken left, right and centre these days but I would rather stay on the right side of it in my proposed venture.

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AndyJ
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Post by AndyJ » Mon Aug 15, 2011 9:26 pm

Hi Six gun,
I've been away for a few days, so I've not been able to offer any comments on your questions before now.

The way you have interpreted the law over the seventy year term of copyright from the end of the year in which the author died is pretty well spot on. It is actually slightly more complicated (pdf) for some older works prior to the 1988 Act but generally speaking if you assume 70 years after death that's safe. The term applies within the UK to anything published here, irrespective of where it was first created. If something was created in the USA back in the 1930s or 1940s it is extremely complicated to work out what term applies because prior to US copyright Act of 1976, works had to be registered and then re-registered to maintain copyright protection.
However, if you are only selling your tee-shirts in the UK (or the EU) then the UK law is what you need to go by.

When someone who owns copyright in a work dies, the copyright passes to his heirs under the same rules as other property or chattels, either by operation of a will or the intestacy rules. If he leaves no heir then his estate including any intellectual property rights passes to the Crown (or the Duchies of Lancaster or Cornwall as applicable). The rules for Scotland are slightly different. So someone will own the right even though they may not know of it, much like money in a forgotten bank account.

Where a company owns the copyright, the term is still based on the life plus 70 years of the person who created it ('the first owner'), but as it will often be difficult to identify a single employee and even more difficult to trace the date of their death, so long as you have made reasonable inquiries and still failed to find the first owner, then the 70 year period runs from the date of publication of the work concerned. Of course in certain case the date of publication could be after the actual date of the author's death, but usually publication will occur during their life so a shorter term will exist for anonymous authors.

So using this methodology, if a company which owned the copyright goes into liquidation or is otherwise wound up, without the IP rights specifically being transferred, but 70 has elapsed since publication then the work will be in the public domain. If however it is less than 70 years since publication, then you would need to make enquiries about who inherited or obtained the assets of the business. The best place to start would be Companies House as they should have details of any winding up of a registered company. If no heir or successor-in-title can be found, then although you can't assume that the rights have been abandoned, it is highly unlikely that any one will come forward and challenge your use of the images after all this time. Such a person would need to prove that they were the bona fide current owner of the rights before a court would allow them to pursue a case of infringement, and that would usually require documentary evidence which should have emerged during your reasonable enquiries.
Whilst I agree that parts of the copyright legislation are 'broken', I think that this part - where copyright meets the law of succession - is actually reasonably sound. There are moves afoot to clarify the law where so-called orphan works are concerned, but it is likely that this will be in the form of a licensing system administered by a collecting society such as DACS.
Good luck with your venture.
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

Sheogorath
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Post by Sheogorath » Wed Oct 12, 2011 3:00 am

AndyJ, your info is a little inaccurate. To paraphrase the Copyright, Designs and Patents Act 1988 (Amendments), "literary works are
protected for 70 years after the death of the author, up to the end of the year." This means that if the author died in 1941, then their works are protected until 01/01/2012.
I'm an Autistic auto-didact cognoscente of UK copyright law.

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AndyJ
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Post by AndyJ » Wed Oct 12, 2011 7:15 am

Hi Sheogorath
I'm not sure what you are referring to, when you say I am inaccurate, as I haven't actually stated a specific date for when something might enter the public domain, based on the example quoted by the OP.
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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Post by Sheogorath » Wed Oct 12, 2011 9:35 pm

Andy, you were inaccurate when you said the way the OP interpreted copyright law was 'pretty well spot on' after he intepreted it to mean that an author's works entered the Public Domain in 2011 if they died in 1941.
I'm an Autistic auto-didact cognoscente of UK copyright law.

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