Copyright Aid

What happens when copyright, say of an industrial photograph, belongs to a company ie because they have commissioned it and own the copyright by the law of the time or agreement. When does copyright expire?

And what happens to such when a company is taken over, liquidated and finally dissolved. Does the intellectual property pass to the new owners of the former company's assets and how would you ever trace this ownership?

Hi Terry,
I'm assuming you are asking in the context of Australian law. In fact the general approach is the same for the UK and most member states of the European Union. Only the USA has a different system of calculating the copyright term for works which are corporately owned. My second assumption is that the work you are concerned about is a literary, musical, artistic or dramatic work. If it's a computer program, film, sound recording, or performance other than a dramatic work, then a different term will apply.

The relevant Australian law can be found in Sections 33 and 35 of the Copyright Act 1968. Section 33 says that the term of copyright is the lifetime of the author (ie the person who created the work) plus 70 years assuming that the work is published during the author's lifetime, otherwise the rules in section 33(3) should be followed. And section 35(6) effectively says that ownership of the copyright immediately transfers to the employer if the work was made in the course of employment.

Of course it can be extremely difficult to track down the identity of the actual employed author if he or she is un-credited for the work. On the basis that the identity cannot be discovered by reasonable inquiry, especially if the company has been dissolved, you should be able to apply the rules in section 34:

34 Duration of copyright in anonymous and pseudonymous works

• (1) Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 70 years after the end of the calendar year in which the work was first published.
  
  (2) Subsection (1) does not apply in relation to a work if, at any time before the end of the period referred to in that subsection, the identity of the author of the work is generally known or can be ascertained by reasonable inquiry.

This of course assumes that the work was published. If it hasn't been published then you have a problem because at present Australia has no orphan works legislation in place.

All of the foregoing applies within Australia. If the work was made outside Australia, but was made available there, then the Australian term should be used to calculate when the work might enter the public domain, unless the country of origin provided for a shorter term. This can get extremely complicated if the country of origin is the USA, because prior to 1976 their system of calculating copyright terms depended on the work having been registered, and a work which was unregistered, or whose re-registration was not completed satisfactorily, could end up in the public domain much earlier than the lifetime plus 70 years rule.

And to answer your last question, yes, when a company is taken over, the intellectual property such as goodwill, trade marks, copyright and patents etc will all be transferred, either to the new owner, or possibly sold off to a third party. All of this should have been documented at the time of the takeover. I suggest that you start by asking the current owner, if you want to license or otherwise obtain permission to use a work you think is still in copyright.

I hope this helps. Please come back if you need any further details.

Thanks Andy, but in fact I was asking in the context of UK law although I suppose that doesn't make a lot of difference.

When the copyright term is set by the life of the author plus a period of years how is that applied when the copyright owner is a company not a person?

For example if the author is an employee or the work was copyright was assigned to the company. Obviously a term that relates to a life plus a number of years can't be applicable.

I haven't read anything that seems to cover this so I hope you can help.

Hi Terry,
Fortunately the UK law is much the same as Australian law on both how the term is calculated (s12 CDPA) - the lifetime of the author plus 70 years - and who is deemed to be the first owner of copyright in the case of a work created in the course of employment (s11 CDPA) .
Unfortunately the situation remains based on the lifetime of the author, even though a company owns the actual copyright. This is clearly very unhelpful when one is trying to determine the term of the copyright of a particular work where the identity of the author is obscure. However no one seems prepared to tackle the issue head on in the way that the USA has done, which is to give corporately owned works a fixed period of 120 years from creation of the work, or 95 years after publication, whichever is shorter.
However UK law has introduced some new rules to deal with orphan works. These are works where the copyright owner either cannot be identified, or if known, cannot be located. This doesn't solve the problem of determining the copyright term itself, but it does allow a licence to be obtained in order to use the work if the owner can't be located. I'm not sure if this provision would be helpful in your case, because it depends on whether the successor company claims (or acknowledges) that it owns the copyright.

Thanks very much for that .

This question is a result of the Science Museum London asking me for copyright clearance so they can provide a scan of a c.1902 plate from a company archive they hold, for a book I am writing. The notion of expiry of copyright seems to be new to their image people, which is a bit of worry and they want me to put my case in writing.

The company has long been dissolved and its several successors have themselves long gone down the tube with a lot of British manufacturing. Finding the former company's copyright owner is impractical as is finding the identity and date of death of the photographer.

However, it seems clear that the retrospectivity provisions of the 1911 Act would apply and that the copyright would have expired 50 years after the photograph was made. That is simple enough I think. If there was any suggestion that such a photo was still in copyright until 70 years after the death of the photographer then I guess one could fall back on the unknown author provisions.

I haven't yet looked at the 'orphan copyright' provisions but will.

More generally there seems to be a lot of misleading or at best unclear information out there and one major uncertainty seems to be the impact of each Act on work that was copyright under previous legislation. It seems to be thought by some that the Duration Regs of 1995 apply to everything previously published way back to the year dot. I read stuff that seems to be saying that expired copyrights have been revived all over the place.

I understand from what you have written in this forum and from reading the legislation:
. The 1911 Act had retrospectivity provisions so it applied to existing works.
. The 1956 Act had provisions which continued the copyrights created under the 1911 Act but any new provisions did not apply to existing works.
. The 1988 Act was the same with regard to the 1956 and 1911 Act.
. The 1995 Regs extension of period from 50-70 years only applied to work that was in copyright in the UK at 31 December 1995 or in any EEA state at 1 July 1995.

Any further comment would be much appreciated and thanks again

Hi Terry,
Thanks for the extra detail. I think it would be fair to assume that if this plate from a 1902 publication is based on a photograph then it is now out of copyright. However if the original image was an engraving there is a slight possibility that there could be a residual copyright remaining, but only if the identity of the engraver is known.

Copyright in photographs was first recognised in the UK by the 1862 Fine Art Copyright Act. The owner of the copyright was the person who owned the negative or plate on which the image was created, although if the work was commissioned or carried out in the course of employment then the commissioner/employer was deemed to own the copyright because they would have paid for the negative etc. The term for such works was the author's lifetime plus seven years. However the copyright needed to be registered at Stationers Hall for the copyright to be legally enforced. Assuming that your image had been registered, then it is highly likely that it would still have been in copyright at the time the 1911 Act came into force (on 1 July 1912), unless the author died before 1905 which seems unlikely. Thus when the 1911 Act came into force the existing copyright term would have been superseded by the new provisions, which as you note, would have been 50 years from the making of the photograph. On that basis it is fair to assume that the photograph would have fallen out of copyright no later than 1953. This was 4 years before the 1956 Act came into effect so there would have been no further extension based on the new provisions of the 1956 Act.

If the image was an engraving, then the effect of the 1911 Act would have been to create a new term of the author's lifetime plus 50 years. On that basis, assuming that the artist did not die before 1907, the work would have still been in copyright when the 1956 Act came into force. However neither the 1956 Act nor the later 1988 Copyright Designs and Patents Act changed this term. It was not until the 1995 Regulations which you mention that the term was extended by 20 years after death. Although the Regulations did have some retrospective provisions, these were fairly limited in scope and time. On that basis if the work was an engraving, and the artist died before 1945 (when he might reasonably have been around 70 years of age), then the work will be out of copyright; if the artist died after 1944, then the work is probably still in copyright.

However, as it seems to be the case that the artist or photographer is anonymous, the extension brought in by the 1995 Regulations do not apply to such works (see Regulation 15(2)). Thus even if the image was based on an engraving, the work would now be out of copyright. This is based on the reasonable assumption that the anonymous engraver was no younger than 25 years of age when the engraving was made, and he lived to the average life expectancy of 75 years, and so died not later than 1952, and thus the 50 years post mortem period would have lapsed on 31 December 2003.

Thank you Andy, but Oh dear, just when I thought I had understood most of it I find:

In Schedule 1, sec 12, subsec 2 to the 1988 Act it states that copyright in published photographs and photographs taken before 1 June 1957 continues to subsist until the date on which it would have expired under the 1956 Act.

I do not think the amending 1995 Regulations changed this provision which was carried over from the 1956 Act which carried over the provision of the 1911 Act. The Regs only referred to copyright expiring 70 years after the death of an author and not to copyright expiring on a date after the work was made or published.

The above is still in the Act as amended so am I right in believing the copyright period for a photograph taken prior to 1 June 1957 is 50 years from the date it is made?

If this is correct then copyright has expired on all photographs made prior to 1 June 1957 which is very significant for me and maybe others too!

Of course there may be one or more other funny clauses that exclude this. Do you know?

Cheers

Hi Terry,
No need for despair! The seventh schedule of the 1956 Act deals with transitional arrangements, and is specific about photographs:

2 In relation to any photograph taken before the commencement of section three, subsection (4) of that section shall not apply, but, subject to subsection (3) of that section, copyright subsisting in the photograph by virtue of that section shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the photograph was taken, and shall then expire.

(the bit about section 3 subsection (3) does not change things in this instance, as that subsection merely refers to works which were not first published in the UK, or the author of which was not an entitled person under the Act).
So even if the photograph had been still in copyright at the time the 1956 Act came into force (which it can't have been because it was made at least 55 years before), the original 50 year term would have remained un-changed by the 1956 Act.
However I am not able to say categorically that all photographs taken before 1 June 1957 are now in the public domain, because there is some doubt over the situation for unpublished photographs*. The 1911 Act differentiates between other forms of copyright work, based on whether they have been published or not, but Section 21 which deals with photographs makes no such distinction. As far as I aware the courts have never been asked to decide on this question which thus remains slightly debatable.

*For an overview of what changes may or may not be in the wind concerning unpublished works generally, see the UK Government's recent report(pdf) on a consultation exercise it held last year.

So, Andy, would it therefore be safe to say that photographs published before 1 June 1957 are now all public domain, as they would have been covered by the 50 years from creation of the 1911 Act, and thus would have all lapsed at the end of 2007 at the latest?

This does have implications for a book I'm currently working on, as I intended to include a limited number of film front-of-house stills and photographic lobby cards, many of which predate 1 June 1957. The same applies to another project about a specific film, which was released early in 1957. I would assume that the act of making the stills/cards available for publicity purposes, and displayed in cinema lobbies for the public to see would count as "publication."

AndyJ wrote:*For an overview of what changes may or may not be in the wind concerning unpublished works generally, see the UK Government's recent report(pdf) on a consultation exercise it held last year.

This makes for interesting reading. Inevitably rights holders are adverse to relaxing or abolishing the 2039 rule:

"The Society of Authors indicated that the estate of one author has been in receipt of £100,000 over the last 25 years through licensing extracts of unpublished materials held by archives. Removal of the 2039 rule would potentially have deleterious effects on the revenue stream of such estates over the next 25 years."

Presumably here they're talking about the unpublished works of authors whose published works have already lapsed under the usual 70 years post mortem rule. In many cases such estates will have unexpectedly benefited from increase from 20 to 70 years on published works, and wanting to claw a bit more from unpublished works begins to look like an unjustifiable prolongation of control/income long after the death of the author in question. Clearly this isn't about supporting bereaved spouses of children, but merely continuing the enrichment of grand- and even great-grand-children.

Interesting, also, that it echoes my previous concerns about a "rush to publication":

"Concerns were raised by several respondents that the removal of the 2039 rule could result in the hurried publication of poorly-edited or misattributed editions of previously unpublished works in order to secure the 25 year publication right in commercially valuable works (for example, previously unpublished manuscripts or correspondence from renowned authors). It was reasoned that such publication could come at the expense of other publishers who had invested time and money in producing a better quality edition of the work."

Hi Nick,
I think your comments broadly sum up the situation! Although as you will have seen from the response document, this is a remarkably complicated area covering as it does documents which are hundreds of years old and probably never entitled to copyright in the first place, to unpublished sound recordings from recent times.
In many ways I think the Government's approach is the least worst option. Broadly speaking works of cultural or heritage value which are in archives, libraries and museums can be slowly released via the orphan works regimes (mainly the one derived from the EU Directive as this is less costly than the UK domestic version), while items which have less cultural value but greater commercial value (such as the unpublished works of Ralph Vaughan Williams) can continue to be exploited by the vested interests such as the authors estates, or record companies. Either way the works should, in time, emerge for the public to benefit.

AndyJ wrote:Hi Nick,
I think your comments broadly sum up the situation! Although as you will have seen from the response document, this is a remarkably complicated area covering as it does documents which are hundreds old years and probably never entitled to copyright in the first place, to unpublished sound recordings from recent times.
In many ways I think the Government's approach is the least worst option. Broadly speaking works of cultural or heritage value which are in archives, libraries and museums can be slowly released via the orphan works regimes (mainly the one derived from the EU Directive as this is less costly than the UK domestic version), while items which have less cultural value but greater commercial value (such as the unpublished works of Ralph Vaughan Williams) can continue to be exploited by the vested interests such as the authors estates, or record companies. Either way the works should, in time, emerge for the public to benefit.

It is unfortunate that it seems that the rights holders have won the day.

I'm not sure that Vaughan Williams is necessarily such a compelling case, given that his published works are still protected until the end of 2028, so unpublished works covered by the 2039 rule merely represent an eleven year rump at the end. Whatever work the unpublished material may support will therefore be unsupported not long after the published works copyright expires, anyway.

My principal interest in all this is the works of an author who died in 1946, so whose published works will very soon be in the public domain. There are no substantial finished unpublished works, but inevitably a mass of correspondence, but also significantly different early drafts of works published in the 1930s. The commercial value of such drafts is pretty minimal, but in the context of study of the completed and published works they relate to, they have much greater cultural value. Do we really need to throw a few extra residual scraps to an estate that has been benefitting from published works for so long as it is, and in fact 20 years more than were originally expected?

Hey, this is getting somewhere!

For me it is important because there are published photos I would like to use in my book (Vol1 is up to 1952) but the negatives or prints from them cannot be found. I can reproduce the images as published in various period magazine in acceptable quality, apparently without infringing the copyright of the photographer. But what is the position regarding the actual publication itself and any other maybe incidental material e.g. the original caption or text? I shall have to look into but at least I am getting the hang of it.

Terry

This unpublished photo business is still a worry.

It does look as if Section 3, subsection 2 of the Seventh schedule to 1956 Act applies to photos taken before its commencement so that for unpublished photos taken before 1 June 1957 copyright was extended until after they were published.

The 1911 Act was effectively repealed by the 1956 Act and the 1956 was wholly repealed by the 1988 Act.

In Schedule 1 to the 1988 Act we find at 12 (2) (c) that copyright continues to subsist in published photos until it would have expired under the 1956 Act. 12 (4) (c) then says copyright in unpublished photos taken on or after 1 June 1957 subsists until (effectively) the end of 2039. Subsection(6) says copyright in any other description of existing work runs according to the 1988 Act.

That seems to mean that unpublished photos taken prior to 1 June 1957 now had a copyright period that extended to 50 years from the end of the year of the death of the author. That period was extended to 70 years by the 1995 Regs.

Presumably the 1988 Act provisions regarding unknown authors applies so where that is the case the copyright period could run to just 70 years after the end of the year in which it was made, or, if later, first published.

So, by way of example, the copyright in my 1902 photograph may or may not have belonged to the author, the subject John Prestwich or his company J.A Prestwich Manufacturing Company. It is unpublished I am sure. It is impossible to determine who the first copyright holder was but I am sure it would have been the company that owned the negative and the negative is now owned by the Science Museum London.

There is no indication in the company's archive as to who the author was so the company's copyright, which would have expired 70 years after the end of the year in which the author died, would expire 70 years after the end of the year in which the photograph was made - 1972.

Here would be the picture of Mr Prestwich, almost certainly out of copyright, except I am not yet allowed to post images

Terry,
I think you are getting yourself worked up over nothing. And as a consequence you are misinterpreting the statutes.

tsrwright wrote:This unpublished photo business is still a worry

Yes I know I said I couldn't categorically say that unpublished photographs created prior to 1 June 1957 were out of copyright, but that was due to my natural caution on such matters because the courts have not definitively ruled on this possible anomaly. That is not to say I think it is a major issue.

tsrwright wrote:It does look as if Section 3, subsection 2 of the Seventh schedule to 1956 Act applies to photos taken before its commencement so that for unpublished photos taken before 1 June 1957 copyright was extended until after they were published.

I don't follow your argument here. Section 3 of Schedule 7 deals with ownership of the copyright, not the duration (which is covered in section 2 of the schedule).

tsrwright wrote:In Schedule 1 to the 1988 Act we find at 12 (2) (c) that copyright continues to subsist in published photos until it would have expired under the 1956 Act.

what section 12(2)(c) actually says is: "published photographs and photographs taken before 1 June 1957" which reads to me as 'all photographs taken before 1 June 1957'. This is a major pointer to the contention that section 21 of the 1911 Act did in fact refer to all photographs, whether published or not.

tsrwright wrote:12 (4) (c) then says copyright in unpublished photos taken on or after 1 June 1957 subsists until (effectively) the end of 2039. Subsection(6) says copyright in any other description of existing work runs according to the 1988 Act.

I agree with you on this, but surely this merely serves to highlight that 1 June 1957 is the watershed as far as unpublished photographs are concerned. To that extent it has no bearing on the particular image you are concerned about, since we know that was made at some time prior to 1903.

tsrwright wrote:That seems to mean that unpublished photos taken prior to 1 June 1957 now had a copyright period that extended to 50 years from the end of the year of the death of the author. That period was extended to 70 years by the 1995 Regs.

No, I disagree. Unpublished photographs taken before 1 June 1957 had the term laid down in the 1911 Act (section 21) which was 50 years from the date they were made, because paragraph 2 of the 7th Schedule of the 1956 Act explicitly says so.

tsrwright wrote:Presumably the 1988 Act provisions regarding unknown authors applies so where that is the case the copyright period could run to just 70 years after the end of the year in which it was made, or, if later, first published.

The provisions for anonymous works under the 1956 Act are contained in Schedule 2, but are singularly unhelpful in the case of photographs.

Copyright Act 1956 Second Schedule
1. Where the first publication of a literary, dramatic, or musical work, or of an artistic work other than a photograph, is anonymous or pseudonymous, then the subject to the following provisions of this Schedule -- (a) subsection (3) of Section 2 of this Act shall not apply ...

In other words, as far as anonymous photographs are concerned, Section 2(3) does still apply. However this section explicitly does not apply to photographs either, whether anonymous or otherwise, so that leads us nowhere. The Section of the 1956 Act which deals with artistic works (which includes photographs) is Section 3, but that does not mention anonymous works, so again we are no further forward, and have to fall back on the general terms of the 7th Schedule, which I submit must therefore be interpreted to cover all photographs made prior to 1 June 1957 irrespective of their publication status and whether or not they are anonymous. It is this sort of ambiguous drafting which leaves the lingering doubt over the issue of some pre-1957 photographs.

tsrwright wrote:It is impossible to determine who the first copyright holder was but I am sure it would have been the company that owned the negative and the negative is now owned by the Science Museum London.

So, turning to the portrait of John Prestwich, which I assume is the work you are interested in, I think we can be certain that either Mr Prescott personally or his company J.A Prestwich Manufacturing Company, would have been the owner of the copyright. We can presume this from section5 (a) of the 1911 Act

5 ...

• (a) where, in the case of an engraving, photograph, or portrait, the plate or other original was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement to the contrary, the person by whom such plate or other original was ordered shall be the first owner of the copyright

...

However it is not certain on the facts you have given that the Science Museum 'owns' anything other than the physical negative. Indeed they may not even own that if the company archives are on permanent loan or some other arrangement short of full ownership. And of course ownership of copyright, if the work is still in copyright, which I doubt, would be an entirely separate matter.

Up to your most recent posting I had been assuming that the image had been published in some company document or magazine, because you knew the specific date of 1902. However you say

tsrwright wrote: It is unpublished I am sure.

For all the reasons given above I think the portrait photograph of Mr Prestwich can be considered out of copyright, and that therefore the Science Museum can allow you to copy it without incurring liability.

tsrwright wrote:There is no indication in the company's archive as to who the author was so the company's copyright, which would have expired 70 years after the end of the year in which the author died, would expire 70 years after the end of the year in which the photograph was made - 1972.

The 1911 Act does not address the issue of anonymous works. If it is accepted that section 21 of that Act encompasses all photographs, the problem is disposed of, since the duration of copyright rests solely on when the photograph was made, and we know that was prior to 1903. If it is not accepted that section 21 covers anonymous works, then the 1956 Act (and its defective Second Schedule) is of no use. If we then turn to Schedule One of the 1988 Act, we hit the problem outlined above, namely that paragraph 12 (3) which deals with anonymous works, excludes photographs, and thus paragraph 12 (2)(c) must apply, namely that a photograph taken before 1 June 1957 is out of copyright, due to the provisions of the 1956 Act, specifically paragraph 12 of Schedule 7.
I hope you can follow all that!