With copyright in most creative works lasting for the life of the author plus 70 years from the end of the year of death, each new year brings a potential treasure chest of works that have come into the public domain. Phil Lee cherry picks last Hogmanay’s crop.
Topic: Intellectual Property
Who: Various
When: January 2008
Where: UK
Law stated as at: 30 January 2008
What happened:
It is widely known that the term of copyright for literary, dramatic, musical and artistic works in the UK endures for a period of 70 years from the end of the calendar year in which the author of the relevant work died. With this in mind, the website IPKat highlights some notable authors who deaths occurred in 1937 and whose works will therefore shortly be released from copyright in jurisdictions like the UK which have a "life plus 70" copyright term:
- Sir James Matthew Barrie, the author of "Peter Pan" (and other works including "Auld Licht Idylls" and "The Little Minister");
- Jean de Brunhoff, the author of the "Babar" the elephant series of books; and
- George Gershwin, the famous composer of a number of Broadway musicals including "Lady Be Good";
as well as various others (you can see the full list here ). In relation to J. M. Barrie, a rather interesting footnote is that, even though his works (including Peter Pan) are now out of copyright, a specific right still exists under the Copyright, Designs and Patents Act 1988 for Great Ormond's Street Hospital to receive a royalty in respect of any public performance, commercial publication or communication to the public of the stage production of Peter Pan.
Caution needed before copying!
However, as this heart-warming example shows, a degree of caution must be exercised before rushing off and seeking to exploit works which have apparently fallen out of copyright. The intellectual property rights (and the duration of those rights) which attach to works will vary from jurisdiction to jurisdiction and, before seeking to exploit a previously copyrighted work in any particular jurisdiction, it is necessary first to determine: (i) whether copyright could apply to the work in question in the particular jurisdiction; (ii) if so, whether the work in question is still within the term of copyright in the particular jurisdiction; and (iii) whether any other legal protection (under other intellectual property laws or otherwise) exists in the particular jurisdiction for the work in question. Failure to carry out these basic checks could result in the incautious marketer receiving an invoice for significant unpaid royalties.
By way of further example, in the US a large body of copyrighted works (those published before 1978) are still governed under the 1909 Copyright Act. This affords protection to published works for a term of 95 years following publication, regardless of when the author of the particular work died. The result of this is that some works which may be out of copyright in the UK could still be within copyright in the US. Conversely, Canada operates a "life plus 50" copyright term, meaning some UK copyright owners may find it difficult to assert copyright in Canada even where their work is still within copyright in the UK (i.e. where the work has been in existence for more than 50 years, but less than 70 years, since the death of the author).
Why this matters:
This all serves as a reminder that cross-jurisdictional protection of intellectual property is far from being a straightforward affair, with different rights afforded for different terms across different jurisdictions. Before embarking in international exploitation of intellectual property, marketers should ensure that they have the rights they need in each territory to exploit the work in the manner they propose. Similarly, caution should be exercised when seeking to exploit works which are seemingly no longer protected by law – just because that may be the case in one jurisdiction, it will not necessarily follow for all jurisdictions.
