CMU Trends Legal

Trends: Copyright terms, rebooting the copyrights of unpublished works and the 2039 Rule

By | Published on Sunday 15 March 2015

Copyright Pen

Copyright, we all know, doesn’t last forever. The copyright protection of any one piece of content eventually expires after a set period of time (usually on 1 Jan the year after the actual predetermined copyright term ends). And once the content becomes ‘public domain’, anyone can copy, perform, distribute or adapt it without asking for permission from anyone else.

How long a copyright lasts varies from country to country, and often according to the type of copyright. So in Europe, a song has copyright protection for the life of the creator and then another 70 years. But a sound recording has copyright protection for 70 years after its release. Which means songs generally enjoy considerably more protection than recordings.

And until recently the sound recording term was just 50 years after release, meaning that 1950s sound recordings are already public domain in Europe. Though the songs that were recorded – assuming they were new at the time – will still be in copyright, so you can distribute 1950s sound recordings without seeking the original label’s permission, but you’d still need to get a licence for the song copyrights.

However, because the sound recording copyright is ultimately linked to release date, it means that recordings made decades ago but never made public will enjoy a further 70 years of protection if they are released tomorrow. Even if those recordings have been sitting in a dusty box in a record company’s basement for 35 years, and even though records made at the same time and released immediately are now half way through their copyright terms.

That said, the deadline for releasing unpublished recordings and kickstarting the 70 year term is 50 years after a recording takes place. This particular deadline wasn’t extended when the actual copyright term shifted from 50 to 70 years back in 2013. Which creates the slightly odd scenario whereby released recordings from 1965 have another 20 years of copyright protection still to run, but unreleased recordings from that year will go public domain at the end of this year unless someone releases those albums or tracks.

Which is why we have seen, in recent years, labels putting out rarity collections of previously unreleased material by some of the 1960s biggest acts, including The Beatles, The Beach Boys and Bob Dylan. Those labels are ensuring that those recordings, by being released, keep their copyright protection, and for another 70 years too, a process often called ‘rebooting’ the copyright. Because without the reboot, in Europe those recordings, if ever subsequently released, would be immediately public domain (unless remastered or remixed, which sometimes creates a new copyright).

But interestingly, and despite our expectations, we didn’t see a ‘surprise’ release of unreleased 1964 Beatles recordings in the final days of 2014, like we had with unreleased 1963 material a year earlier.

Even though that was the last opportunity Universal Music and Beatles company Apple Corps had to ensure any 1964 rarities they were sitting on got another 70 years of copyright protection in Europe. Perhaps there weren’t any worth unearthing.

Though, actually, in the UK it’s not strictly speaking true to say last December was Universal and Apple Corp’s last chance saloon, because of a little known line of English copyright law called the 2039 Rule. This stems from changes made to copyright term rules in the 1988 Copyright, Designs And Patents Act, which remains the main body of copyright legislation in the UK today.

Prior to the CDPA, the copyright term for literary, musical, artistic and dramatic works (so that would include lyrics and musical compositions, but not recordings) was – as it is today – linked to the lifetime of the creator. But, unlike today, that was providing the work was published in the creator’s lifetime. If any unpublished works were made public after a creator’s death, then a set copyright term would apply, even if the writer had been dead a hundred years or more.

The 1998 Act got rid of this distinction so that the copyright in works unpublished when a creator died would expire at the same time as the copyrights in their published works, which, under current rules, would be 70 years after death.

But a compromise was needed, because this change meant that anyone sitting on unpublished works that, under the old system, could have been published and enjoyed a new copyright term oblivious of when the original creator had died, would no longer have that option. The compromise was that all such unpublished works would get an automatic extra 50 years of copyright, until 2039, even if the creator had died a century ago. And this principle was called the 2039 Rule.

The 2039 Rule also applies to sound recordings, though only those made between 1957 and 1989, because it was the Copyright Act of 1956 that first distinguished between released and unreleased recorded content.

Between 1957 and 1989, the copyright term of unpublished recordings could be kickstarted at any point and would enjoy a set period of further protection, and there was no deadline on when the rebooting could take place. So in theory labels could sit on recordings for two hundred years and then release them and get their 50 years (as it was then) of copyright.

Because the 1988 act enforced a deadline on copyright rebooting, sound recordings made between 1957 and 1988 also benefit from the 2039 Rule, though in a slightly different way. Whereas an unpublished song written before 1989, and by a songwriter who died over 70 years ago, would only enjoy the extra copyright protection until 2039, with sound recordings, the copyright reboots as normal so the label gets a full 70 years of copyright.

What this means is: any previously unreleased Beatles recordings, them having all been recorded between 1957 and 1989, could actually have their copyrights rebooted for another 70 years at any point between now and 2039, even though the usual 50 year reboot deadline may have passed.

So good news for Universal and Apple Corps. Could that have been why we didn’t see the 1964 Fab Four rarities record last year, despite reboot releases coming out from Dylan and The Beach Boys?

Well, there is a catch. While unreleased Beatles recordings could be rebooted in the UK at any point until 2039, the reboot would not necessarily apply Europe-wide, whereas had those 1964 rarities been put out last December the reboot would have applied across the whole European Union. Reboots under the 2039 Rule are subject to the whims of local copyright rules elsewhere.

The 2039 Rule has been in the news of late, not because of any ponderings over Beatles copyrights, but because in 2013 Parliament gave the Government the power to review the principle and, if a consultation supported such a move, to axe the whole thing entirely.

Some feel that the rule just further complicates copyright term regulations, while putting the UK copyright system out of kilter with European law, which is annoying for a European Commission that would like copyright to operate in as similar a way as possible throughout the EU.

But after said consultation, the Intellectual Property Office announced earlier this year that it was happy to keep things as they are for the time being. The IPO told reporters: “The Government received a range of responses from various interested parties. Although many respondents were supportive of the Government’s proposed measures, a number of respondents raised some concerns with the policy and its potential negative impact on owners of copyright works”.

It concluded: “The Government recognises these concerns and as a result has decided not to take action in this area at this time, but will instead seek further views from affected parties”.

So, for now at least, and only in the UK, a 1964 Beatles Reboot-leg release could still surface to give the Fab Four that little bit of extra copyright protection they surely deserve. Because God knows, it would be nice for those guys to eek out a little more loot from their five decade old recordings.