US 1923-1963 international copyright

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US 1923-1963 international copyright

Post by culturebloc » Wed Oct 12, 2011 1:27 am

I wonder if someone could confirm something slightly confusing.

When the US said that: "For U.S. books published between 1923 and 1963, the rights holder needed to submit a form to the U.S. Copyright Office renewing the copyright 28 years after publication."

Now when a lot of these books were not renewed they fell into the public domain in America. But that doesn't mean they did in the UK or elsewhere around the world, they are still protected for 70 years, correct?

What if they were short stories published in magazines that weren't published in the UK like some of the sic-fi magazines? Does the fact that we consider IP 'subject to copyright' as an automatic action, regardless of whether it was published outside the country, and or if it has lapsed in that native land, still have protection?

Any help to clear this up would really help me out.

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Post by AndyJ » Wed Oct 12, 2011 10:27 am

You have managed to come up with a really complicated set of scenarios, so bear with me as the answers are a bit complicated too. The period you mention (1923 to 1963) is covered by three separate UK Acts of Parliament (the 1988 Act has certain retrospective provisions for works still in copyright when it came into force).

Generally speaking, with literary works which are published in the UK within 30 days of their simultaneous publication elsewhere in the world outside the European Economic Area, the UK copyright terms will apply to it in the UK.

So for works which were published in the UK prior to the 1988 Act coming into force (on 1 August 1989) and which were not entitled to have their copyright term extended by the 1988 Act, the term would have been 50 years following the year in which the author died. Generally speaking this means that where the author died before 1938, their works published in the UK would be in the public domain, at the time the 1988 Act came into force. Note that the year of publication is not relevant for calculating the term, unless the identity of the author is not known.

For works that were only published in the US (or if re-published in the UK or EEA, not within 30 days of the original publication) then the copyright term under the relevant US law applying at the time is the one to use, provided that the period does not exceed the period which would apply if publication had occurred in the UK. It is worth noting here that the actual typographical arrangement (as opposed to the text itself) of a separate edition published in the UK would still be protected by copyright for 50 years from first UK publication.

But, (I said it gets complicated) if the author is a national of either the UK or (after 1 January 1996, another EEA state), and their work is first published outside the EEA, the UK terms will still apply, just as if their work had been published here first.
Section 12 Duration of copyright in literary, dramatic, musical or artistic works.
[ ... ]
(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).
International copyright is governed by a number of conventions, principally the Berne Convention of 1886, the Universal Copyright Convention of 1956, and the 1994 WIPO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). There are also several EU Directives which effect EU members. Fortunately these all say much the same thing about copyright terms, namely that the minimum term is 50 years after the death of the author, but States are free to increase this period of protection within their own jurisdiction. One major complication to this is that although UK law deals with the rights under the Berne Convention, the US did not sign up to the Berne Convention* until 1989, so under UK law works created in the US prior to 1989 were only protected by virtue of the UK and the US being signatories to the 1956 Universal Copyright Convention. Prior to 1956, the relationship between the US and UK over protection of works published in their repective countries was governed by bilateral treaties, (most notably the Bilateral Agreement of 1891) which said that each country would apply its own national protection to the works of the other. This is actually an even more complicated area than that which has already been covered so far, and I think it is beyond the scope of a post here to explain it simply**.
15A Meaning of country of origin

(1) For the purposes of the provisions of this Part relating to the duration of copyright the country of origin of a work shall be determined as follows.

(2)If the work is first published in a Berne Convention country and is not simultaneously published elsewhere, the country of origin is that country.

(3) If the work is first published simultaneously in two or more countries only one of which is a Berne Convention country, the country of origin is that country.

(4) If the work is first published simultaneously in two or more countries of which two or more are Berne Convention countries, then—

(a) if any of those countries is an EEA state, the country of origin is that country; and

(b) if none of those countries is an EEA state, the country of origin is the Berne Convention country which grants the shorter or shortest period of copyright protection.

(5) If the work is unpublished or is first published in a country which is not a Berne Convention country (and is not simultaneously published in a Berne Convention country), the country of origin is—

(a) if the work is a film and the maker of the film has his headquarters in, or is domiciled or resident in a Berne Convention country, that country;

(b) if the work is—

(i) a work of architecture constructed in a Berne Convention country, or

(ii) an artistic work incorporated in a building or other structure situated in a Berne Convention country,

that country;

(c) in any other case, the country of which the author of the work is a national.

(6) In this section—

(a) a “Berne Convention country” means a country which is a party to any Act of the International Convention for the Protection of Literary and Artistic Works signed at Berne on 9th September 1886; and

(b) references to simultaneous publication are to publication within 30 days of first publication.
* one of the reasons that the US did not join the Berne Convention initially was that it wanted to retain its copyright registration system, which was (and is) incompatible with the Berne Convention. In the nineteenth and early twentieth centuries, The US took the view that as they were net 'importers' of intellectual property (especially in the arts) originating elsewhere in the world, it suited them not to be constrained by international treaties. This is in stark contrast to today when it is the American film and music industries which are the driving force behind ever more stringent worldwide controls on copyright infringement (aka piracy) such as the Digital Economy Act and increased copyright terms such as the EU's extension (pdf) of the protection for sound recordings etc

** However for anyone who is sufficiently interested in this aspect, this paper by Professor James LW West explains some of the background.

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