Our Copyright Statement:
- This material is © 2012 World War One Historical Association. All rights reserved except as noted. Permission is hereby granted to reproduce and distribute this material: a) solely for non-commercial purposes; and, b) provided all these conditions are also reproduced and distributed with them.
- This material is not a complete discussion of the subject by any means. Specifically, this material is aimed at assisting those researching WWI-era documents and photos. It is merely intended as a scholarly high-level illustration of the current state of the law in this area, as a very rough generic guideline to thinking and planning. The law in this area can be complex, and turn on very subtle facts.
- This material is not legal advice to the reader.
US Copyright Law.
Works published by the US Government are automatically within the public domain. Anyone may copy and distribute them (unless covered by some secrecy law). Works may be donated to the public domain by the author or his or her heirs.
Due a radical shift in the US Copyright law scheme, and the interaction of the terms of protections of those laws, as well as how the current law interprets and extends the prior copyrights, Literary Works and Photographs covered by US Copyright law that were published in the US in the year 1922, or prior to it, are automatically in the public domain at this time. Say a photograph was taken by an American photographer in 1918, and was first published here in the states, and was properly given copyright protection here. That protection has expired.
Unfortunately, because of the way that the current (and prior extensions thereto) copyright law deals with items originally filed under the old law, there is no “forward rolling date” that advances each year bringing items published in that year into the public domain.
The 1909 Copyright Act allowed for a 28 year initial copyright term, which could be extended by filing a form before the expiration of the 28th year, for another 28 year term at that time. For example, a US author publishes a history book in 1928, and properly complies with the existing US Copyright law at the time. If the author failed to file an extension, the book became part of the public domain beginning in January 1st 1957. Note, my very brief research indicates that a relatively small percentage of works were actually renewed, even as late as the 1960’s. Of course, the more valuable a work was, the more likely it was renewed. Finding out requires at least a review of the on-line archives of the Copyright Office (not easy, you really should search on the authors name and permutations and then on the title (and permutations), and read all the entries that match) and the archive is not an official government operation. Or, you may pay the Copyright Office’s rate of about $165/ hr, 2 hour minimum- but they do give free estimates (and it’s the official record).
Meanwhile, if the author (or his or her heirs) filed the proper extension during the initial term, the book was under copyright protection while a series of amendments to US Copyright law applied retroactively so that it was automatically entitled to a total term of 95 years from the date of first copyright: in our hypothetical case, that history book published in 1928 will be in copyright until December 31st 2023 (unless some wealthy content owning corporation(s) lobbies Congress for a further extension- then all bets are off).
For reference, works created after the ’78 Act are automatically protected by Copyright for the life of the author plus 70 years.
UK Copyright Law.
The UK law applicable at the time of WW1 was the 1911 Act. Unlike the US scheme at the time, Copyright under the ’11 Act was measured in most works for a period of life of the author plus 50 years. That means that for any particular book, say, one would have to discover who the author was, then find out when they died, and add 50 years. The book would be out of copyright after the end of the calendar year. For works that are done by two or more authors, it would be the longer of: life of the first author to die plus 50 years, or the life of the longest surviving author. Publishing anonymously yields a term of 50 years from date of publication, unless you can find out the real name using reasonable efforts (added under the ’58 Act). So a history book published under a solid pseudonym in 1919 that remains unknown would have expired after then end of 1969.
Unlike the US, works by the UK government are not in the public domain, and are protected by Crown Copyright. Under the ’11 Act, Crown Copyright lasts for a period of 50 years from the date of publication. That would mean that Crown Copyright in a book published under Crown Copyright in say, 1918, expired at the end of 1968.
In general, the ’11 Act covers published photographs, but the copyright term is limited to 50 years from the date the negative was made. Therefore, a photograph published in 1917 has its copyright protection expire no later than the end of 1967, as the negative logically could not have been made after publication. Later Acts changed the trigger for the term, but for our purposes that detail is not important here.
Do not assume that copyright owned by colleges and universities is necessarily covered by this law. If they have their own contract with the Crown, such agreements are exempt from the ’11 Act. Also care must be used to determine if the work was published, and where, and when. The interactions can be complex.
French Copyright Law.
The first thing that one must understand about French Law is what it is not: English or American. In fact, French law derives from an entirely separate tradition: Civil Law, rather than Anglo-American Common Law. In fact, all three nations have arrived at somewhat similar places, but one must be cautious about assumptions. Please note that, using the European mode, all dates are given as day/month/year. As usual, this work is intended as a high level scholarly overview (or introduction) to the field, and is not intended to be legal advice of any kind, nor should you rely upon it for legal advice. Consult an attorney knowledgeable in this area.
Scope of Rights Protected.
French law protects intellectual property (“Works of the Mind”). Broadly speaking, they encompass many of the expected works (books, magazine articles, photographs, music, drama or works with a choreographed show that is recorded in a fixed manner, cinema, software, drawings and paintings, etc.). Perhaps less expected works of applied art and “creations of seasonal industries of dress and articles of fashion”—that is, clothing and shoes are also protected.
Under French law, the creator is author of a work. If no creator can be established, then the publisher of the work is considered the author. French intellectual property protection gives the author the exclusive rights (subject to being transferred to third parties such as a publisher who commissioned the work) to do the following (sometimes called “economic” or “proprietary rights”):
- License the work for monetary gain;
- License the making of copies (or withhold authorization);
- License the performance of the work (or withhold permission).
Unlike the US (and similar to the UK’s Crown Copyright), works created by French governmental agencies are not automatically in the public domain. Proprietary rights will be usually be held by the particular agency creating the work. All these rights are subject to some fairly common sense limitations: the author may not prohibit a private performance at home, and limited copying for non-commercial (the translation used is “private”) use is permitted as the licensing fee for such use has been built into the price of the medium used to store the copy. A particularly relevant exception is one for reproduction of short sections for scholarly analysis (justified by the critical, pedagogic, polemic, or scientific nature of the work citing the protected work). In such cases, a careful legal analysis to make certain your use fits the exception, or obtaining express written permission from the rights-holder, is the better practice.
So much for economic rights of the owners. The biggest difference is that the French see many forms of intellectual property (in particular within the area of “Works of The Mind”, or intellectual property) as embodying two broad rivers of rights: Proprietary Rights and Moral Rights (or Authors Rights). Proprietary Rights are similar in concept to Anglo-American Copyright. Moral Rights are something else.
For instance, in the US and UK, (with narrow exceptions for certain types of fine art) all rights of an author in an original work of authorship may be given or sold to any third party. In France, only the Proprietary Rights may be transferred to third parties. The Moral Rights are personal to the author, may not be alienated (even by the author) until death, when they are passed on to the author’s heirs. This means that a work published (“disclosed” is the usual translation of the French) on French soil may have the proprietary rights associated with it assigned to a publisher who paid to have it written under contract, but the moral rights stay forever with the author. There are some spotty exceptions established in caselaw, but in most cases you should assume the general rule to be true.
Moral Rights are also perpetual—even after the commercial exploitation rights (copyrights) have expired and the work is in the public domain, the moral rights exist and must be respected. The Moral Rights are the following:
- The right to disclose (or rather, the right to not disclose) the work. Until the author has decided to do so, no one may publish the work without permission. After death, this right is owned by the author’s heirs. If the author’s heirs are manifestly abusive (a fairly high standard) in not permitting disclosure, then a court may order disclosure. For instance, say you find an unpublished poem written by a French soldier on life in the trenches in WW1. Even if somehow (perhaps it was originally commissioned for a magazine and the magazine owns the proprietary rights—right of exploitation—and is willing to license you) you can get around proprietary rights issues: you still need to track down the heirs of the soldier and get their permission to publish.
- Right of Attribution. To be properly identified as the author of the work. Say you obtained permission from the heirs to publish the poem. Even with permission, if you failed to properly attribute the poem to the author, you have violated the authors (or his heirs’) moral right of attribution.
- Right of Respect of the Work/Right of Integrity. Only limited modifications may be made to the work absent permission. The exact boundaries of this right are fuzzy enough to make it important to obtain the author (or the author’s heirs) written waiver before preparing a derivative work. Say you wanted to make an audio book out of that book of poetry: you had best obtain permission to create it, even if the authors’ proprietary rights have expired.
- Right of Withdrawal. To correct or withdraw works previously made public. The author must first indemnify persons who have had a copy of the work transferred to them for losses from the correction or withdrawal. This right might not be exercised very often, but it does exist.
In addition, French Proprietary Rights law (unlike US Copyright law) recognizes an author’s rights in the title of a work so long as there is a possibility of confusion between the original work and the like-named work. This right exists even after the older work is within the public domain.
Term of Proprietary Rights Protection.
Unlike the US, France has looked (at least as far back as revolutionary times) to the author’s lifespan to determine the term of protection of proprietary rights. Until 1957, the term was life plus 50 years. Currently, the basic period of protection of proprietary rights for literary or artistic works (books, sketches, painting, still photos, etc.) is for the life of the author, plus 70 years. Whenever the author actually died, the protection is counted starting December 31st of the year the author died. Let us assume that the poet of the trenches published a book of poems in WW1 and died in 1958. His book would enter the public domain after 12/12/2028.
Other categories of work, and circumstances of publication, have different terms and measurements. For joint works, the death of the last surviving author begins the count-down to the public domain. Phonorecords, broadcasts, and audiovisual works are protected for a more limited term: 50 years from the date the record was recorded or the audio-visual work was published to the world at large. Protection for works published under a pseudonym only last 70 years from the date of publication. Similarly, works published posthumously are protected for 25 years from the date of publication.
However, someone who wants to use a work must be careful about multiple layers of economic rights. For instance, a producer’s rights in an audiovisual work are separate from the rights of cinematographers and others. The photographers’ rights in a still photo in a magazine may exist alongside rights of the writer of the article, and perhaps the editor or publisher.
There are several particularly quirky French rules surrounding the term that are liable to impact WW1 items. For musical works published before and during WW1 (and WW2, for that matter) the war years are not counted toward the expiration of the term. The exemption for WW1 is fairly obvious (2/8/14 until the end of 1918, although only if the work was not in the public domain on 2/3/1919), while the exemption for WW2 extends from 3/9/1939 until 1/1/48. Assuming that poet of the trenches work was published between 2/8/14 and 12/12/18, Proprietary Rights would extend until midnight 12/12/2031
For any author who died “for France” that is, on active military duty (based a notation to that effect on the death certificate if issued in France, overseas there are more complex rules), the term extends to 100 years after the death of the author. Note that applicability of this extension does not focus on when the author wrote the work: what matters is when the author died. If, in our case, an author wrote his memoirs in the trenches of WW1, but died under military service shortly after being called up as a reservist in 1939, assuming the death certificate notes such, his work would not fall into the public domain until after 12/12/2039.
Fortunately, the French have a number of societies and groups that hold the right to license proprietary rights in many works (and I would assume can more easily contact Moral Rights holders to negotiate their permission). A partial list of licensors (some date to the early 19th Century):
Centre national des lettres;
Société des gens de lettres;
Société des auteurs et compositeurs dramatiques;
Société des auteurs, compositeurs et éditeurs de musique;
Société pour l’administration du droit de reproduction mécanique des auteurs, compositeurs et éditeurs;
Société des auteurs des arts visuels.
If for some reason the competent body will not agree to collect royalties or if there is no such body, the royalties are paid directly to the Deposit and Consignment Office.
Memo prepared by the law office of Kenneth Perata.