MrT

Hi all,

Anyone looking on the auction site ebay will have probably noticed that the films of Will Hay, George Formby, Old Mother Riley, Frank Randle etc, are openly being offered in dvd format, many in "pirate" versions from private sellers who have designed their own artwork and disc labels. The adverts tend to include statements about how the films are now in the public domain in the UK and are therefore free to be used. This seemed to me to be in conflict with the current UK laws but on doing some research it could be that these sellers are correct. Here is the information I have found, and I'd welcome any further views that anyone might have.

Film copyright in the UK was only introduced by the Copyright Act of 1956. Prior to this, no special copyright of films was made, but each frame was considered a "photograph" and as such was protected by copyright for 50 years. The screenplay etc of the film was a dramatic work and was also covered for 50 years, irrespective of the date of death of the author.


The copyright act of 1956 recognised film as a separate medium and introduced a 50 year period of copyright to run from the first public screening of the film. This was applied to films after 1st June 1957 when the act came into force. Older films were not covered retrospectively.


Revision of copyright laws occurred again with the Copyright Act of 1988. This initially made virtually no changes to films, lumping films and sound recordings together with the 50 year copyright in place. (Pargraph 13 in the 1988 act). Again, the new act was only applied to works created after 1st April 1989 when the act came into force.


In 1995 the act was amended by the "Duration of copyright and rights in performances bill" that was intended to harmonise copyright law throughout the EU. It was this that lengthened the copyright on films to 70 years after the death of the last to die of the director, author or composer of music. This brought film into the same copyright protection as most other literary and dramatic works. This change was applied to films CURRENTLY UNDER COPYRIGHT as defined by the 1988 act, and all new films created after implementation of the bill. It was NOT applied retrospectively to films whose copyright had lapsed by 1996 The net result was therefore to considerably lengthen the period of copyright of ALL films still under copyright in 1996, whose period of copyright was extended as indicated.

So - as both the 1956 and 1988 acts stipulated 50 years for film copyrights - I would say that by 1996 any films produced before 1946 had gone out of copyright, the 50 year period had elapsed, but films from 1947 onwards have had their copyright period lengthened as required by the 1995 bill.

If this is the case, it is of course correct that the Askey and Old Mother Riley films are indeed public domain, also Will Hay and George Formby since virtually all of these were produced before 1946. The Aldwych farces from 1930 - 1942 would also be quite safe.

If anybody can add anything to this or see a flaw in my arguement please add your comments - it is difficult to clarify the exact position here.

Mike Taylor (MrT)

Cheeky Bob

As far as I'm aware, the exact position - and, by logical extension, the flaw in your argument - is that current copyright legislation applies retrospectively to all moving image material, regardless of age. I've never come across the notion that it wouldn't apply to pre-1946 material, and find it very hard to believe that this would be the case - especially as I know for a fact that the most recent legislation had the net effect of putting authors like James Joyce back into copyright following a brief period in the public domain in the early 1990s. So why would films be any different?

So my understanding is that it doesn't matter how old a film is - it's only truly in the public domain if, as you say, more than 70 years have elapsed since the death of the major creative contributors. Which effectively means that hardly any films are in the public domain in this country, and certainly not the titles you cite.

Still, you can always put it to the test - why not try releasing your own George Formby DVD and then sending a copy to Studio Canal or Granada, who between them claim to own most of his output. If you're right, they won't sue. But if you're wrong..... (!)

(Incidentally, much of this material may well be in the public domain in the US, which has a different approach to film copyright. For instance, it's much, much easier to get hold of British Hitchcock films there than it is here, where Studio Canal and Granada still own the rights and presumably don't think it's commercially worthwhile to compete with ultra-cheap US labels).

Steve Crook

You are welcome to test your argument in court. That's the only valid test. And a lot of lawyers get very rich over copyright disputes.

Steve

djdave

These old films may be in the public domain now, for the reasons stated. But in the cold light of a courtroom, they may not be.

Sounds bonkers? Well, the thing about the law is that it's not what was meant when the Government wrote the legislation. It's what's actually written. Depending on how well or badly a piece of legislation is worded, a clever lawyer can ride roughshod through it.

However, I'm often dragged to car boot sales where pirate copies of films which are obviously copyrighted i.e. they're recent, are for sale. In fairness, one car boot sale displays a notice for vendors, telling them NOT to sell pirate copies because the Police are in attendance.

Cheeky Bob

OK, I've done a bit of digging, and this appears to be the relevant UK legislation, which was put into effect following an EU directive aimed at harmonising copyright.

I don't have time to read it in full (and in any case, I'm not a lawyer), but it seems reasonably clear to me that changes in copyright law were indeed applied retrospectively. The crucial paragraph seems to be this one:

(c) seems to be the relevant clause here with regard to old British films, and Regulation 15 is:

...which is irrelevant to this particular issue.

So unless I've missed a crucial get-out clause somewhere in the legislation, it looks as though I'm right to say that a film remains in copyright unless more than 70 years have elapsed since the death of its principal creator(s) - unless this information is genuinely not known, in which case it's 70 years from the production of the film.

In other words, with hardly any exceptions, there's no such thing as a public domain film made after 1936, and relatively few pre-1936 films will be public domain either. After all, even pioneering Victorian filmmakers like Cecil Hepworth and G.A.Smith lived until the 1950s.

JamesM

In the US, in order for a British film to fall into the public domain, the same rules apply. No British film made since could possibly be in public domain. This protection has been in place since 1998 but that did not stop BBC Worldwide and Warner Home Entertainment planning to release Scrooge (1951) on DVD in 2005, knowing full well they did not own it nor have a license to release the film. They were in effect about to release a bootleg version of the film. BBC Worldwide plead ignorance, claiming they thought the film was in the public domain. The release had gone past the authoring stage and had been on Amazon for a while before being pulled.

Cheeky Bob

If I interpret the legislation correctly, and if there are no changes in the meantime, European copyright on Scrooge will expire round about 2056.

Of the three people designated under the legislation (director Brian Desmond Hurst, writer Noel Langley, composer Richard Addinsell), Hurst was the last to die, and he lasted until 1986. Even if it had been impossible to trace their details (clearly not the case here), the film would still automatically be in copyright until the end of 2021.

The problem with Scrooge is that it was originally made by an independent production company, so it's not part of one of the great film libraries - which may well be why BBC Worldwide decided to try its luck! But it doesn't matter who made it: it's unarguably still in copyright.

djdave

Freelance journalists and photographers are having an increasingly difficult time in getting news organisations - including the BBC - to respect copyright.

Because of media combines - where newspapers, magazines, radio, film and TV - are part of the same company, and the rise of electronic media, editors are increasingly trying to obtain "all rights" to a freelancers work.

Some of the tactics they use to intimidate / confuse / frustrate contributors are downright unpleasant.

So I'm not surprised to hear that the BBC were involved in this.

Cheeky Bob

Incidentally, it occurs to me that there's probably no such thing as "public domain" television, given that the first broadcasts weren't made until 1936 in the first place (and precious little from the 1930s to the 1950s survives in any case - and anything after that is 100% definitely still in copyright for a very long time to come).

penfold

Just to add further confusion, I understand that if you do have a Public Domain film - which would have to be something pretty ancient - if you have had it restored, digitally or otherwise, remade the titles perhaps, or added music, you have in effect created a new work so the meter starts ticking from zero again, as it were, on the new version...

Bit of a Bay Window, what??

Cheeky Bob

This is true - for example, while quite a few of the films on the BFI's early cinema DVDs will genuinely be in the public domain, the chances are that their presentation won't be.

Just to give a single example, I'm pretty certain that the work of Hove pioneer James Williamson (as featured on at least one of the BFI DVDs) is genuinely in the public domain - he died in 1933, and as far as I can establish he was the only person who'd qualify as a significant creative contributor, and he also owned the production company (which in any case was wound up in 1910), so in theory his films have been public-domain since the end of 2003.

However, if the BFI edition includes a music track, then the copyright in that version belongs to the composer, and remains until 70 years after that person's death. That said, there's nothing to stop you from distributing the silent footage if you're certain that it's originally Williamson's.

penfold

So long as you have access to the original footage, and not the BFI restoration of it...you couldn't, for instance, take the BFI dvd and remove the music track and claim that as Public Domain.

Bit of a Bay Window, what??

JamesM

Broadcasts are quite different. A 50 year copyright period applies, as it is with sound recordings.

MrT

Many thanks to all those who have replied. Back to my original point: if the films of Will Hay, George Formby etc are not in the UK public domain, why do the copyright holders not take action against the sellers on ebay who are doing a nice little trade in these titles? Surely they cannot be unaware of what's going on?

Mike Taylor

DB7

The likes of Canal+ are represented by FACT and the MPAA and I'd imagine their priority is closing down torrent sites and DVD factories churning out thousands of copies of new cinema releases rather than second gen dvdr's of Will Hay. I have known ebay pull items on a few occasions but I've no idea why it's been just a select few. Maybe ebay only act if contacted?