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1.10 Copyright, neighbouring rights and film archives

Michael Henry 1994

This article examines the legal complexities which film archivists have to deal with. Although the article refers to United Kingdom legislation, many of the points made will apply equally to other European or former Commonwealth countries. The article begins by identifying the various types of rights which are relevant to archives - copyright performers rights, moral rights and other rights. It then examines the activities of film archives, and specific exemptions given to libraries -but not archives - before identifying the four principal problems faced by archives. Having identified the problems, it is possible to specify the additional rights which national legislation should provide in order to enable archives to perform their cultural mission. The article concludes with a short summary of proposals made by the National Film and Television Archive.

1 Copyright Protection of Films

1.1 Pre-June 1957

Pre June 1957 films are protected in the United Kingdom in a number of different ways:

(a) Protection of a film in the United Kingdom as a dramatic work. Copyright exists for the life of the author of the film plus 50 years in the United Kingdom (although the term of protection could be life plus 70 years elsewhere). The author for United Kingdom purposes is considered to be the director of the film. It is therefore necessary to establish the identity of the director and his or her date of death, in order to discover whether the dramatic work copyright in a film still subsists.

(b) Protection of a film in the United Kingdom as a series of photographs. Copyright subsists under United Kingdom law in films as a series of photographs either for the period of 50 years from the date on which the photograph was made or for the life of the cameraman plus 50 years (or the life of the cameraman plus 70 years elsewhere).

In some territories the term of protection may be longer. it is therefore necessary to establish both the identity of the production company of the film and the identity of all persons who could be considered to be the <<author>> of the photographs - normally the director and the cameraman. Dates of decease also have to be established, in order to discover whether the photographic copyright in a film still subsists.

(c) Protection of a film in the United Kingdom as a series of sound recordings. Under United Kingdom law the period of protection lasts for 50 years from which the sound recordings were made. Some territories provide a longer period of copyright protection up to 99 years and in the USA common law copyright protection is given for certain sound recordings up to 2049.

1.2 Protection in the United Kingdom of films made after May 1957 and before August 1989

The period of copyright protection in the United Kingdom for films made between the above dates is 50 years from the date of registration of the film in the United Kingdom or the issue of copies of the film to the public. Public exhibition is not considered to be issuing copies. Many films were not registered or issued to the public and the period of protection for such films under the law before the 1988 Copyright Designs & Patents Act was technically eternal. For unpublished films, copies of which were not made available to the public, the protection period is 50 years from I August 1989 (the commencement date of the Copyright, Copyright Designs and Patents Act 1988).

1.3 Protection in the United Kingdom of Post-July 1989 films

Any film made on or after 1 August 1989 has a period of copyright protection in the United Kingdom of 50 years from the showing or playing of the film in public or its broadcast or inclusion in a cable programmer service or the issue of copies of the film to the public. The period of copyright protection may be longer outside the United Kingdom.

1.4 Protection of films outside the United Kingdom

Whilst the minimum period of copyright protection for films established by the Bern Convention is 50 years, there are some countries which provide for longer periods. In the USA the period for pre-1978 films is an initial period of 28 years plus a further period of 47 years subject to renewal of the copyright registration. Post-1977 films in the US are protected for a term of 75 years from publication or 100 years from creation. The periods of protection elsewhere in the world are also liable to variation, although the Bern period (50 years) is often used as the minimum.

2. Underlying Rights Clearance of the copyright status of a film itself is not sufficient. The following additional elements need to be dealt with.

2.1 Underlying Literary material

The question of ownership of any underlying dramatic work, a play, and of the ownerships of any underlying literary work, such as a book or a screen play adaptations, revisions, translations, outlines and treatments needs to be considered. These rights must either have been assigned or licensed to the original film-maker who will need to have acquired the right to licence the use of excerpts of the film. Without such authorisation the use of excerpts will infringe the underlying literary and dramatic material.

2.2 Underlying Musical Material

The identity and ownership of all rights in relation to music and lyrics used in the film and any arrangements or translations must be established. These rights must either have been assigned or licensed to the original film maker who will need to have acquired the right to licence using excerpts of the film. Without such authorisation the use of excerpts will infringe the underlying musical material.

3 Third Party Material

Where a film incorporates choreographic routines or uses poetry or preexisting sound recordings or preexisting film footage or other material, the copyright in this material will similarly need to be assigned or licensed. These rights must either have been assigned or licensed to the original film-maker who will need to have acquired the right to licence using excerpts of the film. Without such authorisation the use of the excerpts will infringe the underlying literary and dramatic material.

4 Performers Rights

4.1 The United Kingdom and a Number of other Countries give Protection to Performers

In order for a performers performance to be protected it must be given in one of the countries or by one of the nationals of those countries. Performers' rights therefore subsist in performances given by (say) Austrian nationals in the US in 1943 and any time after that. A performance means a dramatic performance (which includes dance and mime), a musical performance, a reading or recitation of a literary work or a performance of a variety act or similar presentation.

4.2 Moral Rights

The Bern Convention provides for the establishment of a number of moral rights.

United Kingdom law currently recognises the following moral rights:

(a) the right to be identified;
(b) the right not to have a work suffer derogatory treatment;
(c) the right not to have a work falsely attributed .
(d) the right to privacy.

Moral rights subsist in literary dramatic musical or artistic works and in films (but not sound recordings under United Kingdom law). Any use of any of the above material in a context outside that in which it was originally created is capable of amounting to derogatory treatment of a work. Appropriate consents need therefore to be obtained from the owners of all literary, dramatic, musical and artistic works.

4.3 Other Rights

Various other rights exist including a right to privacy and a right to publicity (under US law) and in appropriate circumstances releases may need to be obtained from living and/or dead persons featured in the material. The circumstances in which such releases may be necessary will need to be determined in consultation with errors and omissions insurers. Where relevant individuals are deceased, the procedure will require detailed investigation of wills and other testamentary disposition and the rights of deceased's spouse(s) children and grand-children.

4.4 Collective Rights

A number of rights are administered collectively. The PRS administers rights in music. PPL and VPL administer rights in sound recordings and video recordings. The ALCS administers authors rights and a number of other collecting societies are being established (such as DACS DPRS etc.).

4.5 Directive 92/100

European Union Directive 92/100 on Rental Rights has established an unwaivable right to equitable remuneration which will be enjoyed by creative persons engaged in cinematographic works. Such persons may include the director screenwriter composer and others.

4.6 Directive 93/98

European Union Directive 93/98 will extend the term of copyright in certain European Union states with effect from I July 1995.

5 Activities of Film Archives The day today activities of the film archives require them to copy material, in order not only to preserve it, but also to make it available to third parties for viewing. Whilst the terms of the deposit agreements operated by some archives permit them to copy material, there is a substantial amount of material in the possession of the archives for which no written agreements exist. The copying of such film material by the archives is capable of being an infringement of

- the copyright in the film;
- the copyright in the sound recordings contained in the film's soundtrack;
- the rights of the performers featured in the film and/or sound recordings;
- in certain circumstances the moral rights of authors and directors;
- the copyright in any underlying literary dramatic musical or artistic material incorporated in the film, or on which it is based.

Although the Copyright Designs and Patents Act extended the scope of civil and criminal liability, it did not provide any means for obtaining consent from any recognised body in circumstances where the owner of copyright or moral rights cannot be traced (although a system does exist to deal with circumstances where a performer cannot be traced).

In many cases it is extremely difficult for the archives to establish the identity of persons who own rights in films and sound recordings.

Without the consent of all owners of copyright, owners of moral rights and/or all performers of qualifying performances, the activities of the archives in copying material for preservation purposes, or for the purposes of viewing, may be unlawful. The activities of the archives are consequently somewhat restricted.

6 Specific Exemptions given to Libraries

The activities of the film archives require them to make available material to third parties who wish to use the material for research or for private study. In this respect, the activities of an archive are not unlike those of a research library which may be used by both students and persons carrying out commercial research. The Copyright Designs and Patents Act 1988 contains certain provisions which permit libraries and archives to:

(a) make copies of published works, without infringing any copyright; and
(b) supply other prescribed libraries and archives with copies of material, without infringing copyright; and
(c) make replacement copies of certain works, without infringing any copyright; and
(d) make copies of articles of cultural or historical importance, without infringing any copyright where such articles are being exported in certain circumstances. The provisions of the Copyright Designs and Patents Act which apply to library archives do not, however, extend to the activities of the archives, and do not apply to films or sound recordings. In many cases it is extremely difficult for the archives to establish the identity of persons who own rights in films and sound recordings. Without the consent of all owners of copyright, owners of moral rights and/or all performers of qualifying performances, the activities of the archives in supplying material to third parties may be unlawful. The activities of the archives are consequently somewhat restricted.

7 Rights Owners' Consents

7.1 Uncertainty of Copyright Status of Certain Works

Because of the absence of any requirement to register details of authorship or ownership of the copyright in films, sound recordings and their underlying literary dramatic musical and artistic works, it is impossible in many cases for the archives to state with certainty whether a film or sound recording is the subject of copyright protection in its own right, or whether the underlying literary dramatic musical and artistic works from which the film is derived (or which are contained in it) are still subject to copyright protection. There is legislative precedent (e.g. Canadian Copyright Act) for amending copyright legislation to include an express provision which will apply in circumstances where owners of copyright cannot be traced.

Although in many instances the archives suspect that such material is not the subject of copyright protection and is therefore in the <<public domain>>, it is frequently unable to establish this factually, and therefore unable to exploit the relevant film. This uncertainty affects all films - even those made before the Copyright Act 1911 came into effect on 1 July 1912.

The position relating to films made between 1 July 1912 and 31 May 1957 is further complicated by the fact that such films were the subject of three separate and overlapping types of copyright protection:

(a) as dramatic works; and
(b) as photographs; and
(c) as sound recordings.

The 1911 Copyright Act did not contain any provision for deter- mining the authorship of films which were protected as dramatic works, but it is generally assumed that the author was the director of the film, and it is therefore possible for each of the three copyrights in such films to be owned by a different person.

Even where one particular company can be identified as the owner of all the relevant copyright elements of a film, and it can be shown that the film is still protected by copyright, this does not necessarily mean the end of the legislative uncertainties. Companies are frequently dissolved by their shareholders and are nowadays struck off the Register of Companies if they fail to file annual accounts promptly.

Where a company is dissolved or struck off, the property which it has not distributed to shareholders automatically becomes the property of the Crown, and is known as bona vacantia. Many films are thought to have vested in the Crown in this manner

7.2 Uncertainty of Copyright Ownership of Certain Works

A further problem encountered by the archives is the difficulty which it faces in tracing and contacting the copyright owners of material which may still be the subject of copyright protection, either directly (because the relevant film or sound recording is still in copyright) or indirectly (where the film or sound recording is in the public domain but the material on which it is based is still in copyright).

In circumstances such as this, the ability of the archives to perform their functions of copying material for preservation, making the material available for cultural use, and making copies of it available to third parties, are severely limited.

The proposal for copyright harmonisation recently issued by the European Commission contemplates the extension of the copyright term throughout the European Community to a period which is equal to the life of the author of the relevant copyright work, plus 70 years. It also changes the identity of the <<author>> of a film to the natural person who made it, which could extend the United Kingdom period of protection from 50 years to life plus 70, which is capable of being a significantly longer period. The proposal is likely to lead to a draft Directive in 1995 or 1996, and will extend the period in which the copyright status of films is doubtful, adding to the uncertainties referred to above which surround the copyright status of certain films.

7.3 Difficulty in Dealing with Works of Uncertain Status

Where the copyright status or ownership of films or their underlying work is uncertain, the archives are placed in an extremely difficult position.

An infringement of copyright is not simply a matter of civil liability, but (by virtue of the Copyright Designs and Patents Act Section 107) a criminal offence is committed where a person knows <<or has reason to believe>> that an infringing copy of a copyright work is being made, exhibited, or distributed.

The position is compounded by the Copyright Designs and Patents Act Section 110, which provides that where a criminal offence is committed by a body corporate, if the offence is committed with the <<consent or connivance>> of a director, manager, secretary, or other similar officer, then, that person is <<liable to be proceeded against and punished accordingly>>.

7.4 Access to and Use of Material

Even when a work can be shown to be out of copyright and <<in the public domain>>, it may still be possible for persons to prevent the cultural or economic use of the work. The owner of the only surviving print, or sound recording, or book, or poster, can prevent other people from making unauthorised copies of the physical material, even though this material might freely be copied without infringing copyright.

If the contractual arrangements by means of which access is granted to a non-copyright film do not permit copies to be made, and copies of the film are made, the owner of the print (who may never have controlled copyright in the film) can sue the person who made the copy for trespass to the owners' goods. The period of the owner's right to sue for trespass is technically without limit, and is capable of lasting far longer than the period of copyright protection. Even if the legislature were to limit the period of time during which an action for trespass to goods might be brought, it would still be possible for the owner of a film to lock it away in a vault and deprive others of access to it.

What is needed, therefore, is a positive right by which the archives or other interested parties can obtain access to a film or to other culturally significant materials (during or after the period of copyright protection) for the purpose of making copies, either to preserve the material for cultural heritage or to make it available for economic exploitation. Without any such right of access, the benefit of the <<fair dealing>> provisions contained in the Copyright, Designs and Patents Act 1988 Section 30 is limited.

There is a strong argument for establishing a right of access to material possibly subject to payment to the owner of the material of a reasonable access fee which could be monitored by the Copyright Tribunal in a manner similar to the system established by the Broadcasting Act 1990 to ensure the free use of programme schedule information.

8 Rights required by Archives

In order to fulfil their mission, Archives require the following rights:

(a) the right to copy existing material for preservation;
(b) the right to copy existing material for restoration;
(c) the right of access to or loan of third party material;
(d) the right to make copies of material available for study or research;
(e) the right to show or play material in public.

9 National Film and Television Archive Proposal

In order to guarantee the preservation of our audio-visual national heritage and for the reasons set out above, a statutory deposit scheme for audiovisual material on similar terms to those which apply to books published in the United Kingdom should be established. The audiovisual legal deposit scheme should apply to all films which have been commercially exploited in the United Kingdom. The National Film and Television Archive is compiling proposals for a legal deposit scheme in the United Kingdom. This scheme comprises three essential elements, being:-

- the deposit of material;
- access to materials on loan;
- authorisation to carry out acts in relation to materials.

The National Film and Television Archive wishes the following materials to be deposited:

(a) Print material of United Kingdom productions;
(b) Original negative or inter-negative material of United Kingdom productions;
(c) Print material of foreign productions exploited in the United Kingdom;
(d) Ancillary material for productions exploited in the United Kingdom.

In addition it will require access to or loan of material of cultural historical importance, authorisation to copy material for preservation and restoration purposes and authorisation to make available material for cultural/educational purposes.


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