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Who owns copyright, and for how long?

Introduction

The concepts of authorship and ownership are of central importance in copyright law:

  • The author of a work must usually be a qualifying person if the work is to be protected;

  • The author’s identity and status determine the question of first ownership of the rights;

  • Protection of literary, dramatic, musical and artistic works lasts for a period based on the lifetime of the author, irrespective of who is the first owner of copyright.

Authorship

Authorship and Ownership

The authorship of a copyright work is a very important concept; as we shall see, the author of a work is usually the first owner of copyright in it. The rules for establishing who is the author are contained in Sections 9 to 11 of the Act.

In general the author of a work is the person who creates it: section 9(1)1. Thus in Donoghue v Allied Newspapers2 it was the ghost-writer, not the supplier of the material, who was the author. Who owns the physical form of the copyright work is immaterial: if you buy a painting or photograph, you do not have the right to reproduce it, and if someone sends you a letter the copyright remains theirs (Re Dickens3). Section 9(2) expands on this basic principle for certain classes of work. Copyright is freely alienable, which is not always the case in the civil law copyright countries.

Sound Recordings and films

The author of a sound recording is the person by whom the arrangements necessary for the making of the work are undertaken4. In the case of a film, the authors are the producer and principal director5 - a change from the long-established position in UK copyright law that it was the producer rather than the director who was the important person where films were concerned, a further example of how the Anglo-American system of copyright favours the entrepreneur rather than the creator. French law took the other view, and in the course of harmonising the duration of copyright protection the provision originally included in the Act has had to be changed. Slater v Wimmer6 is a good example of how this works in practice.

Broadcasts

In the case of a broadcast, the author is the person making the broadcast7. If the broadcast simply relays another broadcast by reception and immediate retransmission, the author is the person making that first broadcast.

Typographical Arrangements

The author of the typographical arrangement of a published edition is the publisher of that edition.

Computer-generated Works

Potential difficulties arise in the case of works generated by computer in circumstances such that there is no human author. In the case of computer generated literary, dramatic, musical or artistic works the author is taken to be the person by whom the arrangements necessary for the creation of the works are under taken8. In the case of other classes of works, this rule already applies, so the fact that a computer is involved is immaterial to the application of the basic rules.

However, it remains difficult to see who would be regarded as that person. It is quite possible, for instance, that this could be the author of the program which enables the work to be created; on the other hand, it appears equally possible that it could be the computer operator who brings everything together (like a film producer) but exercises relatively little skill himself. In most cases, in all probability, the person involved will be a company (or legal person) rather than a natural person.

Unknown Authors and ‘orphan works’

It may be that the identity of an author is unknown or, in the case of a work of joint ownership, the identity of none of the authors is known. A work is one of ‘unknown authorship’ (the expression used in section 9(4)) if it is not possible for a person to ascertain the author’s identity by reasonable enquiry (section 9(5)).

Works of unknown authorship could include works which are published anonymously or under a pseudonym. If the identity of the author becomes known, the work is treated in the normal way; if the identity of the author remains unknown, special rules apply for determining the term of protection, which is limited to 70 years from the end of the calendar year in which it is created or first made available to the public.9

Section 9(5) contains what appears to be a statement of the obvious, that if the identity of the author of a work is known that work can never again be one of unknown authorship. However, this proposition does have one important effect which is that once a work has acquired copyright protection for the full term of life plus 70 years it is not reduced to the lesser period of protection afforded to works of unknown authorship if the identity of the author is lost.

The problem of what it called ‘orphan works’ received attention in the Gowers Review, which proposed a wider permitted act to allow the use of works the owner of copyright in which could not be found, together with the establishment of a register. The Digital Economy Bill, introduced by the government in December 2009, contains provisions to empower the Secretary of State to deal with the problem in secondary legislation., and legislation has been introduced to implement these recommendations. Unfortunately, rather different legislation has been introduced by the EU. In the UK, the Enterprise and Regulatory Reform Act 2013 will lead to the introduction of a system for licensing orphan works, as well as a clearance procedure for using individual orphan works. It only empowers the Minister to make regulations to do these things, so we must wait to see the form of regulations. One important matter is what exactly will be required in the way of a “diligent search” before advantage can be taken of the new rules.

In the EU, on the other hand, Directive 2012/28/EU, adopted on 25th October 2012, on 'certain permitted uses of orphan works' takes a different approach. It sets out common rules on the digitisation and online display of orphan works. There will also be a register of orphan works established. Member States were given 2 years to implement it.

Joint Authors

The Act makes special provision for works of joint authorship - those produced by the collaboration of two or more authors in which the contribution of each is not distinct from the contribution of the others. For a work to be one of joint authorship, there must be a collaboration in the creation of the work. Collaboration means labouring in furtherance of a common design, and subsequent alterations to an existing work will not make a joint work. In Fylde Microsystems v Key Radio Systems Ltd10 fixing software bugs was not enough to give rise to joint authorship. Each of the joint authors must make a contribution of the right kind so as to constitute him or her an author: they must put in skill and labour, and the contribution must be significant and original.11

If the contributions are distinct from one another then, on the face of it, the work is not a work of joint authorship but rather there are two or more works. The wording makes it plain that the creations of Gilbert and Sullivan or of Rodgers and Hammerstein are not works of joint authorship, nor are anthologies in which a single book contains the work of several authors. The contributions of the people involved in works of that nature are quite distinct. This interpretation of the law has been settled since Chappell v Redwood12, and has the effect of making the copyright in the words and in the music expire at different times, although that will change when the amended duration directive comes into force.13

So, too, where several authors contribute chapters to a legal textbook. Such a book is a collection of copyright works. If, however, authors collaborated together on drafts of the complete text, a work of joint authorship would be created. The same applies to artistic works; the creations of Gilbert and George are works of joint authorship, and in Cala Homes (South) Ltd & Ors v Alfred McAlpine Homes East Ltd14 the plaintiffs were joint authors, having worked closely with and contributed to the design process of the architects who made the formal drawings. The question of whether a work is one of joint authorship is closely related to the question of whether an individual has done enough to create something that is original, without necessarily collaborating with another person. In Beckingham v Hodgens15 the claimant’s violin part in The Bluebells’ recording of Young at Heart amounted to an original musical work, though there was no intention to create a joint work.16 See also Bamgboye & Anor v Reed & Ors17 and Fisher v Brooker & Ors 18 and compare Brighton & Doublejoint Co Ltd v Jones19 where canges to a play were if a type that a director would usually make.

In a work of artistic craftsmanship, as we have seen20, some of the cases suggest that it is essential that the artistic and craft skills reside in the same person21. There would therefore be no scope for arguing that the person with the artistic input and the person who provides the craft skills count as joint authors of such a work.

In the case of broadcasts, where more than one person is regarded as making the broadcast under the provisions of section 6(3) the broadcast will be treated as a work of joint authorship. As we saw above, the Independent Broadcasting Authority and the individual programme contractor were both ‘persons making the broadcasts’ for the purpose of section 6(3) and they were therefore joint authors of the broadcast. The Independent Television Commission does not discharge the IBA’s former broadcasting function, so the joint author with the licensee is now the body in whom the transmitting equipment is vested.

Ownership

The basic rule of ownership of copyright is that the first owner of copyright in a work is its author22. The Berne Convention requires this23. There are some special rules.

Presumptions

Section 104 establishes certain presumptions about the ownership and duration of copyright.

Joint owners

Where a work is a work of joint authorship, section 10(3) provides that the term ‘authors’ is to be construed as a reference to all the authors throughout Part I of the Act unless it is specifically stated otherwise. So anyone wishing to use the work of joint authors must obtain the consent of both: section 173(2). Slater v Wimmer is a case in point

Employed Authors

The main exception to the rule concerns literary, dramatic, musical or artistic works made by an employee24 in the course of her employment. In such a case the first owner of any copyright in the work is the employer, subject to any agreement to the contrary.25 Contracts of employment frequently modify this position, as there remains scope for doubt about whether what an employee does at work is within the terms of her job description, and whether what she might do in her own time would be in the course of her employment.

There is a fundamental distinction, drawn in Stevenson, Jordan and Harrison v Macdonald & Evans26, between making a work as part of the job (so copyright belongs to the employer) and the making of the work being merely an accessory to the contract of service. In that case, a senior executive of a firm of management consultants gave public lectures on financial control, which was not part of his job. In Noah v Shuba 27Mummery J said that a useful test of whether a work is made in the course of employment is to ask whether the employee could have been ordered to make it .

In Byrne v Statist28 the plaintiff was employed by the Financial Times, and (with two others) was asked by the newspaper to quote for translating a speech from Portuguese (which he spoke fluently). He did the translation at home in his own time and the court held that he had not done it because of his duty to the FT as one of their staff, or in the course of his employment. And again, in Goswami v Hammons29 a research assistant employed by a university who was given permission to submit the results of his work as a doctoral thesis was entitled to the copyright in his thesis as it was not written ‘in the course of’ his employment.

This area of copyright law has given rist to cases more directly concerned with straightforward employment law. In Massine v De Basil30 the choreographer undertook to give his full and exclusive services to the director of the Russian ballet and was held to be under a contract of service.

On the other hand, in Stevenson, Jordan and Harrison v Macdonald & Evans Lord Denning considered that the test should be that a man under a contract of service is employed as part of the business, while under a contract for his services, his work, although done for the business, is not integrated into it but is accessory to it. In University of London Press Ltd v University Tutorial Press Ltd31 two academics not on the staff of the University were appointed as examiners. They were given discretion over what questions to ask, they prepared the papers in their own time and they were paid a lump sum. They were also free to accept other paid work. It was held that they were not employed under contracts of service.

In Beloff v Pressdram32 the lobby editor of the Observer sued the publishers of Private Eye for publishing an internal Observer memorandum written by her. She claimed that copyright in the memorandum belonged to her, on the basis that she was employed on a contract for services not a service contract, but the court considered that she was integrated into the business of the newspaper and therefore an employee.

Directors may be employees of their companies, with service contracts, in which case the normal rules about employee copyright will apply. There is likely to be less scope for argument about what is in the course of their employment, as a director’s duties are likely to be less circumscribed than those of an ‘ordinary’ employee.

Note that there are no special rules for particular types of employees - journalists, for example, who enjoyed special treatment under the 1956 Act.

Commissioned Works

There are no special rules in the Act about commissioned works, not even a definition: in Gabrin v Universal Music Opeartions Ltd33 ‘commission’ was said to mean that A asks B to create a work and agrees unconditionally to pay for it in any event.

This lack of a special rule may appear hard on someone who has paid good money to have a piece of work created for her, but ultimately simply has the effect of requiring her to obtain a formal assignment (which must comply with the requirements of section 90(3) of the Act for writing and the owner’s signature) of the copyright in the commissioned work. Section 91(1) provides that where an author purports to assign the copyright in a work that does not yet exist, as soon as the work is created the copyright vests in the assignee. In taking steps to ensure that copyright ends up in the appropriate hands, this provides a useful mechanism for dealing with future copyright.

Equity will sometimes give beneficial ownership to the commissioner, with the result that although at law the copyright belongs to the author he or she will hold it on trust. The commissioner, as beneficial owner, will then be entitled to call for an assignment to perfect his or her title. But whenever there is a problem about the ownership of copyright in a commissioned work, the question is whether the commissioner has bought the copyright or merely acquired a licence to use the work for the purpose contemplated by the parties at the time.

The law will, where necessary to give business efficacy to the agreement, imply an assignment (which, not complying with the legal requirements, will take effect only in equity) or a licence. The implied term must be reasonable and equitable, and it must be obvious that the parties intended it. In addition, it must be capable of clear expression and must not contradict any express term of the contract. Whether an assignment or a licence is the right way to deal with the matter will depend on the particular circumstances of the case.

Where the court finds the intention of the parties to have been that the commissioner would have the exclusive right to exploit the work by making copies of it, it is likely to hold that there is a trust and that the commissioner is beneficial owner of the copyright. If it is contemplated that the commissioner will be able to enforce the rights against third parties, it is more likely that it will decide that there must be a trust.

In some circumstances, the commissioner may have procured the creation of a derivative work based on something provided by him. If the commissioner provided illustrations to be scanned and made into digital files, and owned the copyright in the original images, the court would be more likely to imply an assignment. Likewise if the finished product is a composite work and the only person capable of exploiting it is the commissioner – which was the position in Nichols Advanced Vehicle Systems v Rees.34

Similarly, in Lakeview Computer Services PLC v Steadman35 the Court of Appeal held that copyright in computer software created by the defendant, who had been a sole proprietor but had later incorporated a company (later reincorporated as a public company) of which he and his brother were the directors and shareholders, belonged to the company. While it was largely a matter of evidence, the court found that there was an agreement to assign the intellectual property in the programs to the company which took effect as an equitable assignment. The arrangement was documented, though not very thoroughly, and the defendant had sought to argue that the copyright remained with him. The court was not convinced, as his continued ownership of the copyright was hard to reconcile with his employment by the company to develop the programs concerned.36

In Warner v Gestetner37 the court considered that the commissioner had shown enough to justify an assignment to be implied so it could make the use of the commissioned graphics that it wished to make of them (the artist having contended that the price paid covered only one type of use). The defendant was also ordered to let Mr Warner have the artwork for his portfolio.

In R Griggs Group Limited and others v Ross Evans and others38, the High Court, Chancery Division, considered beneficial ownership of copyright in a logo designed by a freelance designer. The claimant had decided to combine the Dr Marten’s trademark which it used under licence with its own registered trademark AIR WEAR. It commissioned an advertising agency to design the logo, and paid them for the work. The design work was carried out by the defendant, who was engaged as a freelance designer. The defendant claimed that he believed the logo would only be used for point-of-sale material in the UK. Had he known he was being asked to produce a logo for world wide use, he said he would have charged more. He had assigned the copyright in the logo to the second defendants, and claimant sought a declaration that it was the beneficial owner of all aspects of the copyright in the logo. The court held that where a freelance designer is commissioned to create a logo for a client, it will rarely suffice to imply a term that the client would enjoy a licence to use the logo and nothing more. Usually, it would be obvious that the client would need more, such as the right to prevent others from reproducing the logo. In this case, the defendant had been paid the proper rate for the job. It took some skill and labour, but combining the two trademarks was relatively mundane. The idea of combining them have been the client’s. In the circumstances, it was obvious that the right to use the logo, and to exclude others from doing so, was to belong to the client, not the designer. The client was the beneficial owner of the copyright and was entitled to the declaration, and the second defendant was not a purchaser for value without notice.

In other circumstances, it will be adequate for the court to imply the existence of a licence. There are many situations in which there is no express licence granted but nevertheless clearly there must be a licence, otherwise the arrangement would be deprived of any purpose. Whether the work was commissioned or not, the person who pays for it must get permission to do what would normally be expected in such a transaction. It is a matter often left unspoken by the parties, who may not even appreciate that they are dealing in copyright, but it is often of crucial importance. Software may be distributed on terms that are not reduced to writing, but there must be a licence to make the software of any use to the buyer: leaving it to the courts to imply terms is to leave much to chance, of course, and it is prudent to say the least to ensure that a properly drafted software licence is in place before parting company with copies of the program.

An example of the court implying a licence rather than an assignment is found in Robin Ray v Classic FM39. There, the claimant was acting as a consultant – there was no suggestion that he was employed – to the defendant in drawing up a playlist for its newly-launched radio station. He prepared a detailed categorisation of the station’s classical music resources, including a rating of the popularity of each work. This would enable the defendant to use an automated selection system, which may explain why in the early days the presenters appeared to have so little idea about what they were introducing. When the defendant proposed to exploit its database by licensing stations abroad to use it, the claimant took exception: the defendant however argued that as it had commissioned the work, he held the copyright on trust for it. The court held that on the construction of the consultancy agreement, all that was in the contemplation of the parties was that the defendant would use the material to enable it to carry out its business of broadcasting in the UK. That required only a licence, and there was no reason to imply an arrangement that would give it more extensive rights.

Lightman J summarised the principles governing the rights of the contractor and the client. In Griggs, Jacob LJ describes the summary as ‘masterful’ and noted that counsel for the appellants had no major criticisms of it. To paraphrase it:

  • In default of an express or implied term to the contrary, the contractor is entitled to retain copyright.

  • The contract may deal with who will be entitled to the copyright. This was the case in Lakeview40, where the Court of Appeal found that there was an agreement (documented, though not very thoroughly) by the defendant to assign the intellectual property in certain computer programs to the company of which he was a director. The agreement took effect as an equitable assignment. The court was not convinced by defendant’s argument that the copyright remained with him, as that was hard to reconcile with his employment by the company to develop the programs concerned.

  • Just because the work has been commissioned does not mean that the client is entitled to copyright.

  • As for what terms may be implied in a contract, the House of Lords dealt with this in Liverpool City Council v Irwin41 and distilled in the speech of Lord Simon of Glaisdale in BP Refinery (Westernport) Pty Ltd. v The President, Councillors and Ratepayers of the Shire of Hastings42: the term to be implied must be just and equitable, necessary to give business efficacy to the contract, so obvious as to ‘go without saying’, and capable of clear expression, and it must not contradict any express term of the contract.

  • A minimalist approach is necessary – any term implied must not exceed what is necessary in the circumstances.43

  • In a copyright case, if the need could be met by either a licence or an assignment, a licence will be all that will be implied.

  • Sometimes the client will need to own the copyright. This would be the case if he needed to be able to stop the contractor using the work, or to enforce the copyright against third parties (as in Warner v Gestetner44). Where the court finds the intention of the parties to have been that the commissioner would have the exclusive right to exploit the work by making copies of it, it is likely to hold that there is a trust and that the commissioner is beneficial owner of the copyright. The client may have procured the creation of a derivative work based on something provided by him, or the finished product may be a composite work and the only person capable of exploiting it is the commissioner – as in Nichols45. This points to the client needing the copyright.

  • If all that is necessary is a licence, then is must be the narrowest licence that will secure what the parties to the contract must have intended to confer on the client. The amount paid for the commission may be a relevant consideration here. In Stovin-Bradford v Volpoint Properties Ltd46 the client paid the architect only a nominal amount, whereas in Blair v Osborne & Tomkins47 the full RIBA rate was paid. In the first case, the client could use the plans only for the anticipated application for planning permission, whereas in the second the plans could be used to build.

  • The licence only covers what is in the joint contemplation of the parties at the date of the agreement. The client will not be enabled to take advantage of some unexpected new profitable opportunity.

In Griggs, the makers of the celebrated footwear decided to combine the DR MARTENS stylised word mark, which they used under licence, and the AIR WAIR mark, also a stylised word mark, which they had developed themselves. They commissioned an agency to merge the marks into a single logo. The first defendant worked freelance for the agency in preparing the designs. Later, he supplemented this reward by assigning rights in the logo to the second defendants, an Australian footwear manufacturer. The Australian company became the legal owner of the copyright: the question was whether they held the rights on trust for Griggs.

The designer argued was that he had been engaged merely to produce some point of sale material for the claimants. He pointed to an order and an invoice relating to the work. Had he known that he was being asked to produce something to be used all over the world he would, he said, have charged more than his standard £15 per hour. The claimants could use the logo for point of sale material in the UK, and they might even have the exclusive right to do that, but beyond that the copyright was still his.

The judge considered that neither the order nor the invoice was a document about copyright, so any terms about ownership would have to be implied. He observed that a freelance designer who wishes to establish that he is free to assign the copyright in a logo to a competitor of the commissioner ‘will have an uphill task’. Business efficacy will demand more than just a licence. The fact that the task carried out by the defendant was to combine two existing logos meant that business efficacy demanded even more strongly that the rights should belong to the commissioner.

The defendant argued for minimal intervention in the contract, but Jacob LJ thought it ‘fantastic’ that a limited licence only would have to suffice. Invoking the officious bystander, he opined that if the question of Mr Evans retaining rights in the combined logo which he could use against his (indirect) client anywhere in the world had been raised, the answer would have been ‘of course not’. Nor was there scope for arguing that the defendant needed to retain the copyright so he could extract further payment from the claimant: the deputy judge found that he had been paid the proper rate for the job.

In other circumstances, it will be adequate for the court to imply the existence of a licence. There are many situations in which there is no express licence granted but nevertheless clearly there must be a licence, otherwise the arrangement would be deprived of any purpose. Whether the work was commissioned or not, the person who pays for it must get permission to do what would normally be expected in such a transaction. It is a matter often left unspoken by the parties, who may not even appreciate that they are dealing in copyright, but it is often of crucial importance. Software may be distributed on terms that are not reduced to writing, but there has to be a licence to make the software of any use to the buyer: leaving it to the courts to imply terms is to leave much to chance, of course, and it is prudent to say the least to ensure that a properly drafted software licence is in place before parting company with copies of the program.

Crown and Parliamentary Copyright

Crown and Parliamentary copyright are not subject to section 11 of the 1988 Act. Instead, section 163 provides that Crown copyright subsists in a work made by or under the direction or control of Her Majesty or a Government department. This begs the question of whether a commissioned work is made under such direction or control. The Bill that eventually became the 1988 Act originally dealt with this problem by giving to the Crown copyright in works it commissioned, but this put the Crown in a much more favourable position than other commissioners. For the sake of consistency the Government concluded that the Crown should be placed in the same position as any other commissioner, having to rely on contract if it wanted the rights.

As for the application of the rules about employee authors, servants of the Crown are not employed under contracts of employment, being servants at will, so section 163 is the sole basis on which Crown copyright stands.

Crown copyright materials are made available for public use on liberal terms, which is appropriate for something that the public has already paid for. The details are outside the scope of this work.

Copyright in parliamentary papers vests in the House concerned, not as previously (under the 1956 Act) in the Crown. All works made by officers or employees of the House in the course of their duties are included.

Parliamentary copyright extends to any sound recording, film, live broadcast or cable programme of Parliamentary proceedings. Although the Houses of Parliament are not legally bodies corporate, the Act deems that they are such for copyright purposes. The Speaker exercises the rights of the House of Commons, and the Clerk of the Parliaments exercises those of the House of Lords. The Act provides for the situation where there is no incumbent in one of these positions, and for the exercise of the rights during dissolutions.

Acts and Bills

Copyright in a Bill belongs to the House in which it was introduced, and ceases when the Bill receives Royal Assent. Thereafter copyright in the Act belongs to the Crown.

Duration Of Copyright

General observation

The length of copyright protection varies from one category of work to another, although there are fewer variations than there were before the 1988 Act, Schedule 1 para 12 of which standardises many different terms. Different terms are considered appropriate given the different policy goals underlying the law. However, the duration of copyright protection is usually something that is subject to international obligations.

International obligations

Berne

Article 7 of the Berne Convention demands a minimum duration for copyright protection of 50 years after the death of the author (or post mortem aucotris, ‘pma’ for short, for those lawyers who still have a classical bent).

Universal Copyright Convention

The UCC is less onerous, as it is in so many ways: it requires only 25 years pma.

TRIPs

Most of the Berne Convention, including Article 7, is imposed on parties to the TRIPS Agreement.

The Duration Directive

Directive 93/98/EC, codified in Directive 2006/116/EC, harmonised the duration of copyright and neighbouring rights among the EC Member States, setting minimum requirements which in some cases required the terms to be increased and reviving previously expired copyright. This is amended by Directive 2011/77/EU (adopted on 12 September 2011), which will extend the term of protection for performers and sound recordings to 70 years. The aim of the directive is to bring performers’ protection more in line with that already given to authors – 70 years after their death. The extended term will enable performers to earn money for a longer period of time and in any event throughout their lifetime. The income from copyright remuneration is important for performers, as they often do not have other regular salaried income. The extended term will also benefit record producers, who lobbied hard for it.

The directive also contains accompanying measures which aim specifically to help performers. The “use it or lose it” clauses which will now have to be included in the contracts linking performers to their record companies will allow performers to get their rights back if the record producer does not market the sound recording during the extended period, which accounts for the appearance in 2013 of new releases of previously unpublished recordings by Bob Dylan from early in his career, an no doubt similar archive material from other artists. In this way the performer will be able to either find another record producer willing to sell his music or do it himself, something that is possible easily via the internet. Finally, record companies will have to set up a fund into which they will have to pay 20% of their revenues earned during the extended period. The money from this fund will be destined to help session musicians.

Literary, Dramatic, Musical and Artistic Works

Provided the author is an EEA national or the work’s country of origin in in the EEA (section 15A), copyright in literary, dramatic, musical and artistic works expires at the end of the seventieth year after the year in which the author died (Section 12(1) as amended by the Duration of Copyright and Rights in Performances Regulations 1995, implementing the EC term directive). If neither the author nor the work is connected with the EEA, the comparison of terms rule permitted by the international conventions will apply, and the foreign author or work will get protection for the same period that an author or work from the EEA would receive in the foreign country concerned. The fact that copyright always expires at 12 midnight on 31 December makes it unnecessary to know when the author died (unless it was at a New Year’s Eve party). There are, however, some exceptions to the general rule.

  • Works unpublished in the lifetime of the author. This applies to literary, dramatic, musical and artistic works, and engravings (which received special treatment under the 1956 Act). Schedule 1, para 12(2)(a) and (b) of the 1988 Act provide that copyright in such works will expire when it would have expired had the 1956 Act still been in force – which effectively means 50 years from first posthumous publication. This is particularly an issue with musical works, which frequently fail to achieve publication during the composer’s lifetime.

  • Commercial exploitation of artistic works. Where an artistic work has been commercially exploited with the permission of the copyright owner the term of protection is reduced. This will happen if articles which are copies of the work have been marketed, and copyright will expire 25 years after first marketing, to coincide with the protection available under the Registered Designs Act (so longer protection is not secured by ignoring that Act and relying only on copyright).

  • Typeface design. Typeface design (though a type of artistic work in the UK) is outside the system created by the international copyright conventions, being the subject of a convention all of its own (the Vienna Agreement). The maximum term for protection for a typeface in the UK is 25 years after the year in which articles specially designed or adapted for producing material in that typeface were first marketed.

  • Anonymous works. Anonymous works receive protection for 70 years from the end of the year when they were first made available to the public (note, not ‘published’ or ‘communicated to the public’) with the authority of the copyright owner. Pseudonymous works are protected in the same way. If during that period of protection it becomes possible to identify the author, the ordinary rules will apply (Section 12(2)).

  • Co-authors. Where two or more authors create the same work together, and their contributions are not capable of being distinguished, protection will run for 70 years from the end of the year in which the last of the authors dies (Section 12(8)).

  • Crown copyright. Crown copyright in a literary, dramatic or musical work lasts for 125 years from the end of the year in which the work was made. If it was published commercially within 75 years after being made copyright will run for 50 years from the year of publication (Section 163(3)).

  • Parliamentary copyright. Crown copyright also protects Acts of Parliament and measures of the General Synod of the Church of England, and expires at the end of 50 years from the year of Royal Assent (Section 164). Prior to Royal Assent, copyright in a parliamentary Bill belongs to Parliament. Parliament also owns copyright in works made by or under the direction of either House, which expires after 50 years from the year in which the work was made (Section 165). Similar provisions now apply to devolved legislatures in Scotland, Northern Ireland and Wales.

  • Extended copyright. When the duration directive came into operation, in 1995, works then in copyright (including works in which copyright would otherwise have expired at midnight on 31 December 1995) were protected for an additional 20 years because the post mortem term increased from 50 to 70 years. (In any cases where the new rules would have given a shorter term because of the rule on reciprocity with term in another country for works having their origin outside the EEA, the old, longer term was preserved.)

  • Revived copyright.. When the term of copyright protection was increased in 1995, copyright had already expired on existing works where some of the new, longer term still remained. The works of people who died between 1925 and 1945 were affected: James Joyce, Thomas Hardy, Kenneth Grahame, Edward Elgar, Gustav Holst, the list was long and very distinguished. Copyright was revived where a work was protected in another EEA state under that state's legislation relating to copyright and related rights. As Germany in particular had a longer copyright term than that in the UK for many works, this led to a number of works being brought back into copyright in the UK.

 Where copyright was revived, transitional provisions and savings protected those who were exploiting or who wanted to exploit such a copyright work in the future. By the end of 2015, they will have run their course. These covered:

  • Doing anything in pursuance of arrangements made before 1 January 1995 does not infringe revived copyright;

  • Issuing copies to the public made before 1 July 1995, which were made when copyright did not subsist, does not infringe revived copyright;

  • Anyone can use a work in which copyright has been revived as of right, subject only to payment of a reasonable royalty to the copyright owner (which can be determined by the Copyright Tribunal where there is no agreement); and

  • Doing something that would infringe copyright at a time where it is not possible by reasonable inquiry to ascertain the name and address of the copyright owner does not infringe revived copyright. 

In Sweeney and Anor v. MacMillan Publishers Ltd and Anor [2001] EWHC Ch 460 (22nd November, 2001) the estate of james Joyce, who died in 1941, took action over a new ('reader's', as if it could have been for anyone else) edition of Ulysses. For some reason, the author and publisher had not availed themselves of the licensing of right provisions, and consequently were infringing.

Songs

Directive 2011/77/EU provides that copyright in a song will last for 70 years from the end of the year of death of the survivor of the song-writing team, provided that both (or all) contributions were created specifically for the work in question.

Films

Films are a special case. They were treated for a long time in the UK as the same sort of derivative work as sound recordings and broadcasts. Under the EC term directive copyright (implemented by section 13B of the Act) in a film must now be linked to the lives of:

  • the principal director;

  • the author of the screenplay;

  • the author of the dialogue; and

  • the composer of any music specially written for the film.

Copyright in a film made after 1 July 1995 expires 70 years after the death of the longest-lived of these people, provided one of them is an EEA national. If none of them is, the cmparison of terms rule will apply. Note that this has no bearing on who owns the copyright..

Sound recordings and broadcasts

Copyright in sound recordings lasts for fifty years from the end of the year in which the work was made. If the work is published or made available to the public (by being played in public or communicated to the public) before the end of that period the period of protection is 50 years from the end of the year in which that happens. (Section 13A). Note that this is a contentious issue at present, and although the Gowers Review (which commissioned research into the matter) saw no reason to increase the period, the European Union has subsequently adopted Directive 2011/77 which will increase the terms of protection to 70 years. In the UK, this is known as ‘Cliff’s law’, after Sir Cliff Richard, who will be a major beneficiary of the change and who lobbied hard for it – including taking the opportunity afforded by Tony Blair’s taking a holiday at Sir Cliff’s house in the West Indies. (A two-page advertisement in national newspapers, purporting to show that some 2,000 well-known performers supported the change, lost some credibility when it was revealed that at lest two of the signatories were dead.)

Copyright in a broadcast expires at the end of 50 years from the end of the year in which it was made, provided that the broadcaster was established in the EEA (otherwise the comparison of terms rule will apply): s. 14.

Typographical arrangements of published editions

Copyright in a typographical arrangement (a different matter from typeface design) expires at the end of the 25th year after the year in which the edition incorporating the arrangement was first published: s. 15. Being a home-grown piece of law, this is not affected by EU directives.

Computer-generated works

For the first time in a modern copyright statute anywhere in the world, the 1988 Act makes special provision for computer generated literary, dramatic, musical and artistic works. These are works where there is no identifiable human author. Where this is the case, copyright expires at the end of 50 years after the year in which the work was made.

When the Term of Protection Starts

Making available to the public’ is defined, for literary, dramatic or musical works to include performance of the work in public, broadcasting the work, and inclusion in a cable programme service. For artistic works, the expression includes public exhibition, the showing in public of a film including the work, and the inclusion of the work in a broadcast. In determining whether the work has been made available to the public no account is taken of unauthorised acts.

Section 12(3) provides that copyright in computer-generated work will expire at the end of the period of 50 years from the end of the calendar year in which the work was made.

In the case of works of joint authorship, the period of 50 years begins running from the death of the last of the joint authors whose identity is known. If the identity of the authors is unknown, then the rules relating to the identity of unknown authors becoming known will apply if the identity of any of the unknown joint authors becomes known.

Crown copyright, etc.

Special rules apply in the cases of Crown copyright, Parliamentary copyright, and copyright vesting in certain international organisations48. Crown copyright subsists for a period of 125 years from the end of the year in which the literary, dramatic or musical work was made, or, if it was published commercially before the end of 75 years from the end of the year of making, for 50 years from the end of the year in which in which publication took place. ‘Commercial publication’ is defined in section 175(2) as:

  • issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or

  • making the work available to the public by means of an electronic retrieval system...

Publication is not other than commercial merely because it is not done for gain.

Copyright in Acts and Measures runs for 50 years from the end of the year in which royal assent is given, and Parliamentary copyright for 50 years from the end of the year in which the work was made. Copyright in Parliamentary Bills only subsists for the life of the Bill, so it expires when royal assent is given or on the withdrawal of the Bill or at the end of the session.

If copyright vests in an international organisation by virtue of section 168 and any Orders made under that section it subsists for 50 years from end of the year in which the work was made. This period may be extended by Order in Council if necessary to comply with the UK’s international obligations.

Peter Pan

Under the provisions of the 1956 Act copyright in Peter Pan, the well-known dramatic work for children by Sir James Matthew Barrie, expired at the end of 1987. A provision was inserted into the bill by the House of Lords to create a kind of perpetual copyright in the play.

In 1929 Barrie partially bequeathed copyright in his works to Great Ormond Street Hospital for Sick Children, a hospital with a great international reputation in its field. The revenue from the royalties was small in relation to the hospital’s running expenses but nevertheless amounted to a significant sum and, when the copyright expired, theatre managers indicated that they would like to continue to make voluntary payments to replace the royalties to which the hospital would no longer be entitled. At the time the legislation was before the House of Lords the hospital was being obliged to make fund raising appeals to the public.

Barrie did not give his copyright in its entirety to Great Ormond Street. The hospital had the right to receive royalties, and apparently to refuse permission for a performance to take place - permission was ‘hardly ever refused’ according to Lord Callaghan, the former Prime Minister, who moved the amendment. So the rights revived by the Act are not, strictly speaking, a perpetual copyright, or so it was argued in the Lords; the hospital to longer has any right to withhold permission for the play to be staged, and if the hospital ever disappears as a result of a health service reorganisation the right to the royalty will lapse.

The Act provides49 that the special trustees of the hospital appointed under the National Health Service Act 1977 are entitled to receive a royalty in respect of any public performance, commercial publication, broadcasting or inclusion in a cable programme service of the whole or any substantial part of the work or an adaptation of it. The hospital is defined as the Hospital for Sick Children, Great Ormond Street, London, and the Act says that the right shall cease if the hospital ceases to have a separate identity or ceases to have purposes which include the care of sick children. It seems that the right could also be lost by a relocation of the existing hospital, as it is defined by its address.

The Act does not give the hospital any rights which it did not have when copyright expired50, so it continues to have no rights in the Walt Disney cartoon film51. The making of a new film would however give rise to a royalty payable to the trustees.

Sums received by the trustees must be held on trust for the purposes of the hospital, and the trustees must not purport to assign or charge the right otherwise it will cease. Nor may the right be transferred (as other trust property may, by order of the Secretary of State under section 92 of the Health Service Act 1977).

The amount of the royalty payable is to be set by agreement between the parties, and in default of agreement by the Copyright Tribunal. The Tribunal must set a royalty (or other remuneration) which it determines is reasonable in the circumstances. Schedule 6 provides for applications to be made to vary such an order; no application may be made (except with the leave of the Tribunal) within 12 months of the original order or of the order on a previous application to vary it.

No royalty is payable for anything which could lawfully have been done without the licence of the copyright owner while copyright still subsisted; nor will any act permitted under the provisions of the Act infringe the hospital’s rights. And if arrangements had been made between the expiry of the copyright (31st December 1987) and the coming into operation of the Peter Pan provisions of the new Act (which, with a couple of provisions relating to international patent applications uniquely came in on Royal Assent, 15 November 1988) no royalty will be payable.

Publication Right

The Duration Directive (implemented in the Copyright and Related Rights Regulations 1996, SI No 2967) introduced a new right to protect the first publisher of a work after copyright has expired. This protection lasts for 25 years.

In many ways, the right is not unrelated to the protection given to typographical layout, but it goes beyond that publisher’s copyright and extends protection into the form of the work itself. Protection of a typographical layout is concerned with the facsimile image of the work upon the page, and accordingly is a very thin right: publication right which is an entitlement quite separate from copyright, is another matter altogether. However, the rules about exclusive rights, permitted acts, remedies, reviews of licences and protection for circumvention devices mostly apply to this new right as well. It is generally considered to provide a valuable new form of protection against free-riders for publishers of historical documents.

1See, for example, Kenrick v Lawrence (supra, note 14) and Cummins v Bono [1927] 1 Ch 167, in which a medium was held to be the person whose skill, labour and effort brought the work into being.

2[1938] 1 Ch 106.

3[1935] Ch 267.

4Section 9(1)(aa).

5Section 9(1)(ab).

6[2012] EWPCC 7.

7Section 9(2)(b), and see section 6(3) for who is the person making the broadcast.

8Section 9(3).

9Section 12(3).

10[1998] FSR 449.

11 These requirements were enumerated in two key music cases, Kemp v Hadley [1999] EMLR 589 and Godfrey v Lees [1995] EMLR 307.

12Chappell Ltd v Redwood Music Ltd, Redwood Music Ltd v Francis Day and Hunter Ltd [1980] 2 All ER 817.

13See below, para .

15 [2003] EWCA Civ 143.

16 See also Hayes v Phonogram Ltd [2002] EWHC 2062, Robin Ray v Classic FM [1998] FSR 622, Fylde Microsystems Ltd v Key Radio Systems Ltd [1998] FSR 449, and Allason v Random House (High Court, Laddie J, unreported, 2002), and see the discussion at section Error: Reference source not found above.

17[2002] EWHC 2922 (QB) (28 November 2002).

18[2009] UKHL 41 (30 July 2009).

19[2005] FSR 288.

20Para Error: Reference source not found, page Error: Reference source not found.

21Burke v Spicer Dress Design [1936] Ch 400, and see also Hensher v Restawile (note 48, supra).

22Section 11(1).

23The Berne Convention is concerned with the protection of authors and the concept of ownership is not addressed in the Convention as such, which reflects the civil law origins of the Convention.

24 Defined in section 178 as one employed under a contract of employment. In the computer industry there is widespread use of subcontractors, so much so that the Inland Revenue has taken powers to treat contractors operating through one-man companies as employees of the client. The copyright legislation looks purely to the form of the arrangement, so many programmers’ work remains their copyright, unless the commissioner has the presence of mind to take an assignment.

25 Section 11(2).

26 (1952) 69 RPC 10.

27[1991] FRR 14.

28 [1914] 1 K.B. 622.

29 29 October 1982, unreported, Mervyn Davies J: Laddie, Prescott and Vitoria, The Modern Law of Copyright, second edition, at 21.30.

30 [1936-45] MCC 223.

31 [1916] 2 Ch 601

32 [1973] 1 All E.R. 241.

33[2004] ECDR 18.

34 [1979] RPC 127, 139

35 Unreported, 1990.

36 See also Cyprotex v University of Sheffield [2004] All ER (D) 27.

37[1988] EIPR D 89.

38 [2000] EWHC 2914.

39 See note 88, supra.

40 [1999] WL 1048310 (CA).

41 [1977] AC 239.

42 (1978) 52 ALJR 20 (Privy Council).

43 Liverpool again, per Lord Wilberforce at page 245 F-G.

44 [1988] EIPR D 89. The defendant was however ordered to let Mr Warner have the original artwork back for his portfolio.

45 [1979] R.P.C. 127, 139.

46 [1971] 1 Ch 1007.

47 [1971] 21 QB 78.

48See respectively sections 163, 164-7, and 168.

49Schedule 6.

50Para. 3(a).

51For the history of film rights in Peter Pan, see Board of Governors of the Hospital for Sick Children v Walt Disney Productions Inc. [1967] All ER 1005 (CA).

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