Appendix 4 The Society of Authors’ Quick Guide 1: Copyright and Moral Rights
Points 1–8: Copyright in the UK
Points 9–17: Copyright in the USA
© The Society of Authors 2002
The Society of Authors, 84 Drayton Gardens, London SW10 9SB, UK
Tel: 020 7373 6642, Fax: 020 7373 5768, www.societyofauthors.net
I Copyright in the UK
1. How long does UK copyright protection last?
(a) General rule
Copyright in the work of European authors who died after 1st January 1945 lasts until 70 years from the end of the year the author died (post mortem auctoris: pma). Until 1st January 1996, copyright lasted until 50 years pma. For a work of joint authorship, i.e. a work by two or more authors in which the contributions of the authors are not distinct, the period of protection runs from the end of the calendar year of the death of the author who dies last.
(b) Exceptions
(i) Works not published, performed in public, offered for sale to the public on a record or cassette, or broadcast during the author’s lifetime
If a European author died before 1st August 1989, literary, dramatic and musical works not published during his/her lifetime remain in copyright until 50 years from the end of the year of first posthumous publication or until 31st December 2039, whichever is the sooner. (If 70 years pma is a longer period, then 70 years pma will prevail.)
Works unpublished during the author’s lifetime, where the author died after 1st August 1989, are treated the same as published material, and are protected until 70 years pma.
(ii) Works by non-European authors
The works of non-European authors are protected in the UK for as long as they are protected in the country of origin. For USA works, this is now generally also 70 pma but see also Section II below. For works of other non-European authors, including Canadian and Australian authors, this generally (though not invariably) means 50 years pma.
The protection in the UK of American works which are unpublished or were first published posthumously is complicated. If necessary, consult the Society for further information.
(iii): Revived copyright
The works of European authors who died between 1st January 1925 and 31st December 1944, whose work had gone out of copyright, went back into copyright on 1st January 1996 for what remains of 70 years pma – the new period of protection is known as ‘revived copyright’. You are free to use revived copyright material without permission from the rights holder but you have to give notice of your intentions and use may be subject to payment of a reasonable royalty. If you signed a contract before 1st July 1995 for a work which will include extracts from revived copyright material, you can go ahead without having to give notice or make any payment, so long as the work you are quoting from was out of copyright when the contract was signed.
If the author died before 31st December 1924, the period of protection is 50 years pma.
(iv) Artistic works
Artistic works, whether published in the author’s lifetime or not, are protected as at (a) above, with the exception of old photographs, portraits and engravings (see the Quick Guide to Copyright in Artistic Works).
(v) Anonymous and pseudonymous works
The period of protection is 70 years from the end of the calendar year in which the work is first ‘made available to the public’ unless during that period ‘it is possible for a person to ascertain the identity of the author by reasonable enquiry’ in which case the period is as under (a) above. This would include, for example, newspaper articles where the individual author is not identified. Anonymous and pseudonymous works created before 1st January 1996 are protected for 50 years.
(vi) Crown and Parliamentary copyright
The Crown owns the copyright in works made by an officer or servant of the Crown in the course of his/her duties, and in work made under the direction or control of either of the Houses of Parliament. Different periods of protection apply to such works and the Society can provide further information.
(vii) Copyright in the typographical arrangement of a published work
The publisher owns the copyright in the typographical arrangement of a published work (which means that the work cannot, for example, be photocopied or reproduced in facsimile form without the publisher’s consent). This copyright lasts until 25 years from the end of the year in which the edition containing the arrangement was first published.
2. What about the copyright in letters?
Letters are entitled to the same protection as other literary works (see, in particular, point l(b)(i) above). The letter itself belongs to the recipient, but the copyright in it belongs to the writer and, after the writer’s death, to his/her estate.
3. How much may be quoted from a copyright work without permission?
Generally speaking, it is an infringement to quote a ‘substantial part’ of a copyright work without permission. The Copyright Act 1988 does not define what is meant by ‘substantial’ but, in one case, four lines from a 32-line poem were held to amount to a ‘substantial part’. Other legal precedents indicate that the quality of the ‘part’ and its value to the user must be taken into account as well as its length in determining whether it is ‘substantial’. Even a ‘substantial’ quotation from a copyright work may not be an infringement if it is ‘fair dealing … for purposes of criticism or review’ and provided it is ‘accompanied by sufficient acknowledgment’. Again, the term ‘fair dealing’ is not defined in the Copyright Act.
Further guidance on fair dealing, clearing permissions, and what sort of fees might be charged, is given in the Society’s Quick Guide to Permissions.
4. Is there copyright in a title?
There is no copyright in a title, but when a title is distinctive and closely identified in the public’s mind with the work of a particular author, that author may be able to obtain an injunction and damages if the title is used by another writer.
Increasingly these days there is a tendency for established titles and names to be trademarked. (See also the Quick Guide to The Protection of Titles?)
5. Is there copyright in a pseudonym?
What we have said about titles also applies here. If an author writes for a periodical under a pseudonym, he/she can, in the absence of agreement to the contrary, use the pen-name elsewhere when he/she ceases to contribute to that periodical.
6. Is there copyright in a plot?
There is no copyright in an idea or in the bare bones of a plot. To succeed in an action for infringement of copyright, the plaintiff would have to show that the combination or series of dramatic events in the allegedly infringing work had been taken from the like situations in the plaintiff’s work.
In many cases where judgement has gone against the plaintiff, it is clear that the copying of ‘a combination or series of dramatic events’ has to be very close before the copyright is held to have been infringed. Proceedings have failed because it has been held that incidents common to two works were stock incidents or revolved around stock characters common to many works. Furthermore, as copyright is not a monopoly, it is a good defence if a later author can prove that he or she had no knowledge of an earlier author’s work.
7. What formalities have to be complied with in order to acquire copyright protection?
There are no formalities in the UK or in any country which is a member of the Berne Copyright Union. This Union now includes almost all of the principal countries of the world.
Although copyright is automatically acquired immediately a work is written (or recorded in some other form, e.g. on tape or a computer disk), authors are advised to establish evidence of the date of the completion of each work. One way of doing this is to deposit a copy of the script with your bank and obtain a dated receipt. Another is to post a sealed envelope, containing a copy, to yourself.
8. What is the purpose of the copyright notice?
The copyright notice comes in the form © followed by the name of the copyright owner and the year of first publication.
This is the copyright notice prescribed by the Universal Copyright Convention (UCC), of which Great Britain and more than sixty other countries are members, including the United States (and a number of countries which are not members of the Berne Union). Works bearing the UCC copyright notice are protected in every UCC member state, whether or not that state’s domestic law requires registration or other formalities.
II Copyright in the USA
9. The current situation
The Sonny Bono Copyright Term Extension Act came into effect on 27th October 1998. Under the Act, copyright in the USA is extended by 20 years, which brings it into line with European practice. New works are protected until 70 years pma.
Works previously protected until 50 years pma are now protected until 70 years pma, and works previously protected for 75 years from first publication are now protected until 95 years from first publication. There are some exceptions, for instance the new law allows libraries and schools to make use of materials that were about to go out of copyright without seeking permission, if they are not currently being exploited commercially. However, unlike the UK there is no ‘revived copyright’: works which had already gone out of copyright in America remain out of copyright.
10. Works created before 1996
Until 1996, works that had gone out of copyright in the USA (e.g. through failure to renew copyright, or to include the correct copyright line) could not retrospectively secure copyright protection.
However, works originating from outside the USA, and written by authors who were not American nationals, which lost copyright through failure to comply with the required formalities (of registration and renewal, including the copyright notice and complying with the manufacturing provisions) are now automatically protected by copyright in the USA from 1st January 1996, for as long as they would have been protected in the USA had the formalities been correctly met in the first place. Certain complicated formalities have to be met, however, before any action for copyright infringement can be brought – the Society can provide further information.
11. Copyright in old works
The US Copyright Act of 1909 provided for two separate terms of copyright: a period of 28 years (to the day) from publication, followed by a renewal period of a further 28 years. Until 27th September 1957, when the UK joined the UCC, the two countries never belonged to the same copyright union. One result was that the exact copyright status of old work is often very difficult to assess. Further advice should be sought where necessary.
The Copyright Act 1976, which came into force on 1st January 1978, made fundamental changes in the duration of protection for new works, and also contained some complicated transitional provisions. Further amendments came into force on 26th June 1992. The situation is now as follows:
12. Works originally copyrighted before 1950
Such works had to be registered with the US Register of Copyrights, and were protected for 28 years. Copyright had then to be renewed in the 28th year to gain a further 28 years’ protection. As long as such works were registered and renewed, they are automatically protected under the 1976 Act until 31st December of the 75th calendar year from the original date they were secured. In effect this means that all copyrights in their second term on 1st January 1978 were extended for 19 years. This extension applies not only to copyrights less than 56 years old on 1st January 1978, but also to older copyrights that had previously been extended in duration under a series of Congressional enactments beginning in 1962.
Under the Sonny Bono Copyright Term Extension Act, any such work which was still in copyright on 27th October 1998 is now protected until 95 years from the original date in which copyright was secured.
13. Works originally copyrighted between 1st January 1950 and 31st December 1963
Such works had to be registered to gain protection for 28 years. In the 28th year from registration, they had to be renewed with the US Register of Copyrights to gain a further 47 year period of protection, making a total of 75 years. Under the Sonny Bono Copyright Term Extension Act, any such work which was still in copyright on 27th October 1998 is now protected until 95 years from the original date in which copyright was secured.
14. Works originally copyrighted between 1st January 1964 and 31st December 1977
Under the 1992 amendments to the Copyright Act, such works were automatically protected until 75 years from the end of the year of registration, whether or not copyright is renewed in the 28th year. Under the Sonny Bono Copyright Term Extension Act, that period has now been extended to 95 years from the end of the vear of repistration.
15. Works created on or after 1st January 1978
Works created after the 1976 Copyright Act came into force (on 1st January 1978) are automatically protected for the author’s lifetime, and for an additional 50 years pma – now extended to 70 years pma. For works made for hire, and for anonymous and pseudonymous works, the new term is now 95 years from publication or 120 years from creation, whichever is the shorter.
16. Works existing but not copyrighted on 1st January 1978
Unpublished works that were created before 1st January 1978, but have neither been published nor registered for copyright, automatically receive protection under the 1976 Act (as extended by the Sonny Bono Extension Act). The copyright will generally last for the same life-plus-70 or 95/120 year terms provided for new works. However, all works in this category were guaranteed at least 25 years of statutory protection; the 1976 Act specifies that in no case will copyright in a work of this sort expire before 31st December 2002, and if the work is published before that date the term is extended by another 25 years, to the end of 2027. We find it hard to guess why this curious provision was included, but be aware that it does mean that some works may be in copyright for longer than 70 years pma.
17. Registration, renewal and the copyright line
Registration of copyright is no longer necessary to secure copyright protection in the USA. It is, however, advisable. It may be made at any time during the life of a copyright but if arranged within the first three months from publication it secures a claim to statutory damages and attorney’s fees in court actions (otherwise the author has to meet his/her own legal fees, even if the case is won). Compliance with registration formalities is important in relation to a complex reversionary provision for old out-of-print works in their second period of protection (the Society can supply further information). It is also generally useful because someone wishing to trace a rights holder will probably refer to the Copyright Office for information. The current registration fee is $30 and further details and appropriate forms are available from the Copyright Office, Library of Congress, Washington, DC 20559.
Until 26th June 1992, failure to register copyright initially, or to renew it in its 28th year, forfeited copyright protection.
Until the USA joined the Berne Convention on 1st March 1989, a work also had to carry the correct copyright notice to secure copyright protection.
Ill Moral Rights
18. What are an author’s ‘moral rights’?
There are three main moral rights conferred by the Copyright Act 1988:
(a) the right of paternity is the right of an author to be identified whenever a work is published, performed or broadcast. In other words, book writers, scriptwriters, illustrators, and translators must be properly credited.
(b) the right of integrity is the right of an author to object to ‘derogatory’ treatment of a work. Treatment is ‘derogatory’ if it amounts to ‘distortion or mutilation … or is otherwise prejudicial to the honour or reputation of the author …’.
(c) the right not to have work falsely attributed to you. This is the right of a person not to have a literary or dramatic work or, since 1st August 1989, an artistic work falsely attributed to him/her as author.
19. Are there any formalities?
The right of integrity is automatic, without any formalities. An author does not benefit from the right of paternity unless and until he/she has ‘asserted’ the right in writing. It is not clear from the Act when the ‘assertion’ must take place, but we advise authors and agents to include a suitable clause in each publishing contract – the assertion should also appear in the book, generally under the copyright line. The wording is unlikely to be critical. The following is one version:
The Author asserts his/her moral right to be identified as the Author of the work in relation to all such rights as are granted by the Author to the Publisher under the terms and conditions of this Agreement.
Idally the following should also be added:
The Publisher hereby undertakes:
– to print on the verso title page of every copy of every edition of the work published by him/her in the United Kingdom the words ‘the right of [the author] to be identified as the author of this work has been asserted by him/her in accordance with the Copyright, Designs and Patents Act 1988’
– to make it a condition of contract with any licensee concerning any edition of the work to be published in the United Kingdom that a notice of assertion in the same terms as above shall be printed in every edition published by the licensee
– to set the name of the author in customary form with due prominence on the title page and on the binding, jacket and/or cover of every copy of the work published by it and to make it a condition of contract that a similar undertaking is made in respect of any licensed editions of the work.
20. How long do moral rights last?
The rights of paternity and integrity last as long as the copyright in the work. The right of a person not to have work falsely attributed to him/her expires 20 years after that person’s death.
21. When do moral rights not apply?
The rights of paternity and integrity do not apply when work is published in a newspaper, magazine or similar periodical, or to contributions in an encyclopaedia, dictionary, yearbook or other collective work of reference.
22. Can an author waive his/her moral rights?
Yes. Moral rights cannot be assigned to someone else, but they can be waived by the author in writing (although it is very unusual for book publishers to seek a waiver). Furthermore, moral rights are not infringed by any act ‘to which the person entitled to the right has consented’.
23. What happens to moral rights when an author dies?
The rights pass to whoever is nominated in the author’s will. If no direction is given in a will, the rights pass to the person receiving the copyright. However, the right of a person not to have a work falsely attributed to him/her is only actionable by an author’s personal representatives.