"Hi Logan & Debra, love your emails and work. I have become very familiar with copyright law and the differences between U.S. and U.K. law (I am in the U.K.).
There is something I just can't seem to find the answer on though. In the U.S. everything published before 1923 is out of copyright and in the public domain although there is no such cut-off date in the U.K. where it's a straight-forward lifetime of the author plus 70.
My question is, if something (e.g. a book) by a U.S. author was published in the U.S. prior to 1923, does the U.K. adopt the rule of the shorter term and also deem the publication to be out of copyright even if lifetime plus 70 hasn't yet been reached?
It seems unlikely that a U.S. author/illustrator would sue for copyright breach when copyright has already expired in his own domain. Perhaps this is something you could cover in a future blog post? I am mainly interested in book illustrations and artwork. Thanks very much."
Public Domain works originally published in the United States before 1928 with no renewal of copyright protection in their 28th year after publication are definitely in the Public Domain in the United Kingdom as well.
It's U.S. works that were renewed in their 28th year after publication as well as all items published after 1927 (regardless of whether copyright renewal occured) that you have to watch out for...
A U.S. published work's copyright status in the U.K. depends heavily on many factors including...
- what year the work was published,
- what year the work entered the Public Domain in the U.S. (or if it's entered at all),
- whether or not a renewal occurred in the 28th year after publication,
- and in some cases, how many years it's been since the author died.
To make an assessment as to whether a U.S. published work is in the U.K. Public Domain, it's very important to first determine it's copyright status in the United States.
More importantly, you have to make a determination as to exactly when a U.S. work entered the U.S Public Domain because you have to consider what was going on with U.K. copyright law at the time the work entered the Public Domain in the U.S.
If the work is Public Domain in the U.S., there's a good chance it may also be Public Domain in the U.K. (thanks to being able to apply the rule of the shorter term in many cases), however assumptions must never be made because there are just too many factors involved due to the continuing evolution of both U.S. and U.K. copyright law.
You mentioned the rule of the shorter term ~ the "rule of the shorter" term is "a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment, to at most the copyright term granted to the work in the country of its creator's origin." Source: Wikipedia
Basically, in simpler terms, the rule of the shorter term just allows a country following the rule to default to which ever term is the shortest when considering the copyright status of works published outside of that country - the copyright term provided by that country or the copyright term provided by work's home country.
We love the rule of the shorter term because being able to apply it makes it super easy to determine the copyright status of a U.S. work in any country that follows it.
For instance, because Australian copyright law follows the rule of the shorter term, we automatically know that a Public Domain book from the U.S. is also Public Domain in Australia.
It would be much simpler to determine a U.S. Public Domain work's copyright status in the U.K., if the U.K. had always followed the rule of the shorter term but unfortunately for us, that's NOT the case...
U.K. copyright law followed the "rule of the shorter term" (also commonly referred to as "comparison of terms" or the "rule on reciprocity") until November 5, 1956 when the Copyright Act, 1956 was enacted.
U.K. copyright law didn't start following the rule of the shorter term again until 1996 with the enactment of Statutory Instrument 1995 No. 3297 (The Duration of Copyright and Rights in Performances Regulations 1995).
"(6) Where the country of origin of the work is not an EEA state and the author of the work is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (5)."
That leaves a giant 40 year period in history when U.K. copyright law did not follow the rule of the shorter term. You have to take this 40 year period into account when assessing any U.S. published Public Domain work's copyright status in the U.K.
Incidentally, this is also the same amendment that increased the copyright duration of literary works (among other works) to 70 years after author's death replacing the previously followed 50 years after author's death rule.
Unfortunately, this reinstatement of the provision for following the rule of the shorter term in 1996 was NOT retroactive.
According to the U.K. Intellectual Property Office..
"When copyright terms were changed on 1 January 1996, the new terms were applied to many existing copyright works. All works that were still in copyright on 31 December 1995, and this includes works where copyright was about to expire, had copyright extended where the new rules on copyright terms gave a longer term. (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 European Economic Association (EEA), the old, longer term was preserved.)"
You can read more from the above article here...
So, what this means is that you can only apply the rule of the shorter term from a U.K. perspective on any U.S. published Public Domain works published before 1928 (works that had entered the U.S. Public Domain before January 1st, 1957).
For instance, a work from the U.S. published in 1927 was required to have its copyright protection renewed in 1955 in the U.S. in order to retain that protection. If it was not renewed, it fell into the Public Domain in the States on January 1st, 1956 as copyright protection always remains in force until the end of the calendar year.
Because the U.K. was still following the rule of the shorter term on January 1st, 1956, the work fell into the Public Domain in the U.K. as well (and stays there to this day).
U.S. Public Domain works published between 1928 and 1963 are not technically considered to be in the Public Domain in the U.K. unless it's been more then 50 years since the author died.
This is because from a U.K. perspective, works published in the U.S. between 1928 and 1963 (up for renewal in the U.S. during the years 1956 - 1991 respectively) were subject to the copyright laws currently in place in the U.K. during those years.
During the years 1956 - 1991, U.K. copyright law was dictated by the Copyright, Designs and Patents Act 1988 which called for a term of copyright protection equal to 50 years after the author's death with no provision for following the rule of the shorter term with regards to works published by non-EEA countries.
For example, a work from the U.S. published in 1928 was required to have its copyright protection renewed in 1956 in the U.S. in order to retain that protection. If it was not renewed, it fell into the Public Domain in the States on January 1st, 1957 as copyright protection always remains in force until the end of the calendar year. Because the Copyright Act, 1956 went into effect on November 5, 1956, the rule of the shorter term cannot be applied to this work. Instead we must apply the copyright term that U.K. copyright law specified at the time that this work entered the Public Domain in the U.S. (50 years from death of author).
I've recently added a new supplemental report (with spreadsheet and flowchart!) called "When U.S. Works Enter The U.K. Public Domain" to your Public Domain Treasure Hunter's Survival Kit that will assist you in determining which factors are important for your particular situation when considering the copyright status of a U.S. work in the U.K.. This report will take you step-by-step through the years and criteria involved so that you can make a clear determination as to the copyright status of a U.S. work in the U.K.
For those that just want the quick and dirty version, here's the basic guidelines to follow when trying to determine the copyright status of any U.S. published Public Domain books, photographs, and artwork in the U.K....
- U.S. works published before 1900 - Public Domain in both the U.S. and the U.K.
- U.S. works published between 1900-1920 - Public Domain in the U.K. if NO renewal occurred in the 28th year after publication. If renewal WAS filed, will be Public Domain in the U.K. ONLY if it’s been more than 50 years since the author died.
- U.S. works published in the years 1921 and 1922 - Public Domain in the U.K. regardless of whether a renewal occurred in the 28th year after publication or not.
- U.S. works published between 1923 and 1963 - If NO renewal occurred in the 28th year after publication, AND the work was published before 1928, then Public Domain in the United Kingdom. If NO renewal occurred in the 28th year after publication, AND the work was published after 1928, will be Public Domain in the U.K. ONLY if it’s been more than 50 years since the author died. However, if renewal did occur in the 28th year after publication, will be Public Domain in the U.K. ONLY if it’s been more than 70 years since the author died.
- U.S. works published after 1963 - Not Public Domain in the U.K.
Clear as mud right?
That's copyright law for you.
This is an area I've studied extensively over the last few years in an effort to assist our U.K. subscribers.
Also, you mentioned...
"It seems unlikely that a US author/illustrator would sue for copyright breach when copyright has already expired in his own domain."
It is extremely unlikely.
Generally speaking, if the original copyright owner let the copyright protection lapse in the U.S. in first place then it's very unlikely that the original copyright holder cares what happens to the work internationally.
However like anything, there are exceptions particularly with more well known works where an entity will attempt to enforce control of a work's distribution globally despite it's copyright status in the U.S.
In other words, while this entity understands that they have lost copyright protection in the U.S. and can do nothing to stop you from republishing and distributing said work in the States, this same entity may leverage international copyright law to it's advantage and demand that you not distribute the work in other countries where technically the work is still under copyright protection.
I'm thinking of well known works like "Think & Grow Rich" by Napoleon Hill. The 1938 version of the book is Public Domain but I wouldn't attempt to publish it in the U.K. as that would likely attract undesirable attention from some people you would certainly be better off not having to deal with.
More obscure works should not present an issue though.
Thanks Sandie for the great question,
Logan (the author of this article) and Debra