International copyright law question

[Marion]

Hi all,

I'd very much appreciate help with a tricky question. I want to use a 19th-century image which is out of copyright in the country of its creation, but definitely in copyright in the UK, strange as that seems (owing to the 2039 cut-off for unpublished images).

If I use this image for UK publication, does anyone know whether it would be in or out of copyright? I.e., does UK copyright law apply in this case, or the copyright law of the country of origin?

Thanks very much!

[AndyJ]

Hi Marion and welcome to the forum,

Much depends on where and when the image was created, and the circumstances which mean it is still 'unpublished' today. The UK only recognises the copyright in works created outside Britain (and its former colonies and dominions) as a result of various international treaties, the main one being the Berne Convention first signed in 1886.

In answer to your second question, technically speaking a work cannot be given greated protection in the UK than would apply to that work under the laws of the country of origin - see section 12(6) as qualified by section 15A. However rules made by the EU (notably the EU Copyright Term Directive*) can make the issue a bit more complicated.


* the original Term Directive was the Council Directive 93/98/EEC of 29 October 1993; this was superceded by the Directive of 12 December 2006 which I have linked to.

[Marion]

Thanks very much Andy - that's so helpful!

The image was made in Haiti, which adheres to the Berne Convention. I'm glad to hear that works are not normally given greater protection under UK law, but a bit confused by the EU directive which tbh I don't really understand, so if you have any more advice it would be greatly appreciated!

(For context, this is an authored image dated 1832 which apparently remained unpublished until 1988, when it was published Jamaica. If it had been made and published here, under UK law this would mean it would still be in copyright.)

Thanks again,
Marion

[AndyJ]

Hi Marion,

The plot thickens.

For the work, made in 1832, to still be treated as an unpublished work here in the UK it needs to have had an anonymous author. If the identity of the author is or was known, then the act of publication in Jamaica is irrelevant since the author would have died more 50 years before the publication. In other words due to the date of creation and the known author having died no later than say, 1900, the work would have been out of copyright everywhere.

The key to this problem lies in knowing whether:

a. the author was anonymous, and
b. if the publication in Jamaica was authorised or not. That is to say did the author's heirs permit the publication? If they didn't, then we would need to rely on the Haitian copyright law which applied in 1832. I have no idea what that law was or if any such law actually existed. Although Haiti was by then an independent country, I suspect if it did have a copyright law it would have been based on French copyright law, which at the time meant that protection only lasted for the lifetime of the author. By 1866 in France this had become the author's lifetime plus 50 years after death, but of course there is no guarantee that the law of Haiti also adopted this term.

Almost certainly I think we can assume that by around 1900 (or 1950 at the very latest) the work was out of copyright. But in case that conclusion is wrong, we need to analyse the interntaional legal situation.

The first international treaty on copyright which Haiti joined was the Buenos Aires Convention in November 1919. The Buenos Aires Convention required its signatory states to provide as a minimum term of protection of the lifetime plus 50 years after death, and it also imposed the doctrine of the shorter term (ie the same as is stated in section 12(6) of the UK's CDPA) - see Article 6 of the treaty. The Buenos Aires Treaty is entirely silent on what happens in the case of works of unknown authorship, and also on what is to happen with unpublished works. Neither Britain nor Jaimaica joined the Buenos Aires Convention. The Convention was not retroactive and so its terms did not apply to a work made about 87 years earlier than Haitii's accession, unless the work was still in copyright in 1919 under Haiti's domestic law.

Haiti joined the Universal Copyright Convention in 1955. The UCC does recognise the protection of unpublished works but again is silent on the treatment of anonymous works. The UCC also adopts the doctrine of the shorter term (see paragraph 4 of Article 4). Britain joined the UCC in 1957, but Jamaica has never been a member. Again the provisions of this treaty were not retroactive.

In 1996 Haiti joined the Berne Convention. However as this was after the publication of this particular work in Jamaica, the Berne Convention terms may be irrelvant. Britain joined the Berne Convention in 1887 and Jamaica joined in 1994.

So where does this leave the status of this work in the UK today? I suggest that since any copyright which might have applied in Haiti when the work was first made would probably have ended when its author died, or if they were anonymous, when they were presumed to have died. The end of the copyright would have been probably no later than 1900, and certainly well before 1988. There is nothing to suggest that any law of the time in Haiti protected anonymous works in a different manner to the works of known authors.

Jamaica became independent in August 1962, but because it was not a member of any of the relevant international treaties until 1994, it had no obligation to acknowledge or protect the copyright in works made in other countries of origin, unless there was some bilateral agreement between Jamaica and Haiti covering the subject (I have no idea if this was the case).

On that basis I believe that the publication in Jamaica was lawful, firstly on the presumption that any copyright in the originating state had lapsed, and secondy because Jamaica was under no obligation to protect works of foreign origin. Since the work was already in the public domain at that point, the fact of publication did not cause any new copyright to come into being.

However once Jamaica joined the Berne Convention in 1994 and Haiti joined in 1996, both countries became subject to the provisions of that treaty, which although not technically retroactive, meant that paragraph (3) of Article 7 might be said to have applied. This says:

(3) In the case of anonymous or pseudonymous works, the term of protection granted by this Convention shall expire fifty years after the work has been lawfully made available to the public.

If this does apply, and I am very doubtful whether it does, then the UK is required to recognise the copyright in the work until 1 January 2039, if the work was by an anonymous author.

The last question is, if the work is still in copyright, who is the current day owner of that copyright and are they likely to want to enforce that copyright in the UK, especially if they are domicilled in Haiti?

[Marion]

Hi AndyJ,
Wow, that's such a detailed and expert answer, thanks so much for your thoughts!

To answer your question, the work isn't anonymous - although I wasn't aware that the 2039 rule makes a distinction between anonymous and authored works. There's no reference to such a distinction on this page: https://www.gov.uk/government/publicati ... right-term.

I also found a page on the Rule of the shorter term https://en.wikipedia.org/wiki/Rule_of_t ... te_note-71. This suggests that for unpublished works, the country whose copyright law applies is that of the author’s nationality. The artist in this case was actually French. French law appears to be that copyright in unpublished works applies to life+70 AND 25 years from date of posthumous publication - so again, this places this out of copyright.

You're right of course, the chances of a copyright claim being made are very low.

[AndyJ]

As you may be aware the distinction between published and unpublished works is a throwback to earlier copyright legislation and is particularly peculiar to UK law. Ultimately it dates back to the very first Copyright Act of 1709 which was primarily intended to protect booksellers rather than authors.The 1988 CDPA sought to do away with the distinction, basing the term of protection for all types of work solely on the author's lifetime plus (as enacted) 50 years after death. But the 1911 and 1956 Copyright Acts effectively placed most unpublished works in a kind of limbo until such time as the work in question was lawfully published. The theory was that something which had not been published was in no need of protection, and thus its copyright protection only started once the work was published. The unpublished work, such as a diary or personal sketch, was however protected under the common law, as a piece of personal property. The 1911 Copyright Act abolished this common-law protection (section 31) and instead introduced the concept of statutory protection for the unpublished work. You can read about this in section 17 (1) of the 1911 Act. The later 1956 Act did not take the opportunity to tidy things up and so it was left the the 1988 Act to try and remove this anomaly at a time when most of the rest of the world had moved over to the concept of protection being based on the author's lifetime plus a varying period thereafter.

This tidying up was done in Schedule 1, paragraph 12 and sub-paragraphs (3) and (4) of the 1988 Act. For the purposes of the current issue we only need to look at sub-sub-para (3)(b) which, in relation to anonymous works, says:

(b) if the work is unpublished, [copyright continues to subsist] until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force [namely 1 August 1989] or, if during that period the work is first made available to the public within the meaning of section 12(2) (duration of copyright in works of unknown authorship), the date on which copyright expires in accordance with that provision;

Almost identical provisions exist for the unpublished work of known authors or artists. That is the background to why all such unpublished works are due to enter the public domain on 1 January 2039. There have been some attempts to bring forward this deadline by amending the legislation but none has succeeded in being enacted.

I'm glad you have been able to identify both the artist and his nationality. This means we can exclude all mention about Haiti and Jamaica, and concentrate on the relationship between French and British copyright law at the time the work was made. As you say, French law* provided for a term of the artist's lifetime plus 50 years, as did Britain, and so the doctrine of the shorter term does not need to be considered. And as you conclude, this categorically means that the work is in the public domain, and was even when it was published in 1988. The only outstanding matter is that under UK law all the author's moral rights have been extinguished, whereas under French law those rights are perpetual.

* The figure you quoted is the current day term for copyright under both French and British law; that term cannot be applied retrospectively prior to 1995.