UK: A copyright fairy story

March 29, 2016

A recent example of the peculiarities of UK copyright law has brought into sharp relief how the length of some IP rights can outlive changes in statute and policy.

Earlier this year it was reported that the find of a previously unpublished work by children's author Beatrix Potter had led to the extension of the term of copyright in the work, beyond the standard "life of the author plus 70 years" – a rare event and an IP story worthy of fairy tale status.

The work in question is a story entitled 'Kitty-in-Boots' and as well as the text, initial illustrations and some details of a proposed manuscript layout were discovered in the Beatrix Potter archives.

Copyright term, as we know it since the Copyright, Designs and Patents Act 1988 came into effect, has been 70 years from the date of the author's death. However the particular circumstances of this case require us to examine the, often overlooked, schedules to the Act to calculate the term of protection.

As Beatrix Potter died in 1943, the copyright term in her work expired at the end of 2013, and her work has been freely available in the public domain in the UK and other countries since 2014. Schedule I of the Act provides for exceptions to the life plus 70 rule, for works falling into certain categories and that were in existence at the date of the new Act. In particular where an author has died the 1988 Act states, for:

a) literary, dramatic and musical works of which the author has died and in relation to which none of the acts mentioned in paragraphs (a) to (e) of the proviso to section 2(3) of the 1956 Act has been done;

the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year which includes the earliest occasion on which one of those acts is done.

The acts mentioned are publication, public performance, sale or broadcast.

Here then Kitty-in-Boots ticks off the requirements for extended copyright protection: It is a literary work; it was in existence at the date of commencement of the Copyright, Designs and Patents Act 1988; it was unpublished before the death of the author; and the author died before the 1988 Act came into force.

The term of copyright will therefore expire at the end of 50 years from 1989 (when the 1988 Act came into force) – in effect extending the copyright until the end of 2039.

After her death, the copyright in the stories of Beatrix Potter was given to her then publisher, now part of publishing house Penguin Group. The 1956 Act referred to in the 1988 Act schedule above provides that this transfer would include unpublished works, such as the now, newly unearthed Kitty-in-Boots. Penguin would therefore be the copyright owner and the beneficiary of the additional 26 years of copyright protection for the work until 2039.

This is a happy ending for the publishers, Penguin, who have now announced that they intend to publish 'The Tale of Kitty-in-Boots' later this year, on September 1 2016, to mark the 150th anniversary of Beatrix Potter's birth.

UK copyright provisions are not straightforward, as illustrated here, with the relevant acts layered upon each other. Copyright term calculations may not always be as simple as "life plus 70", and schedules such as Schedule 1 and 2A must not be overlooked.