Pondering Perpetual Moral Rights - Divulgation

Franz Kafka

Perpetual moral rights are a strange thing not only to the minds of common lawyers, but to those of German jurists as well. German monist copyright treats economic and moral rights as two inseparable sides of the same coin, which among other things means that copyright cannot be assigned, although exclusive licences concerning the economic rights are possible.

The French do things differently and provide for perpetual rights of divulgation, attribution and integrity (Articles L.121-1 and L-121-2 Code de la propriété intellectuelle – CPI). When it comes to the right of divulgation, Article L. 121-2 CPI states that after the author’s death, this right is exercised by the executors of the author’s will. If the author did not appoint any executors or once they are deceased, and subject to the author’s will to the contrary, the right is exercised by the author’s descendants, spouse, or any other heirs or legatees.

Not only do I spot potential for an orphan works problem here, but I also wonder what happens if the author made it clear that she did not wish for her work to be published ever. Does "the author’s will to the contrary" only refer to the person who shall exercise or not exercise the right, or does it also mean that the author may bind future right holders to her decision never to have the work published at all?

If the former is true, it seems to me that the right holders actually receive a perpetual economic right as well, albeit a one-off one, as they may demand payment in exchange for their permission to publish. If the latter is true, who makes sure that the right holders adhere to that wish? How come, for instance, that Kafka’s posthumously published works are available in France even though he expressly asked for them to be destroyed?

Any thoughts will be very welcome!

Photograph: http://commons.wikimedia.org/wiki/File:Kafka1906.jpg / http://www.zeno.org - Zenodot Verlagsgesellschaft mbH

Perplexing Perpetual Protection (not Peter Pan)

A case of perpetual copyright protection has been puzzling me, and it is not Peter Pan (s. 301 CDPA 1988) for a change, but universities.

The Copyright Act 1775, also referred to as the University Act 1775, was implemented after the House of Lords had established in Donaldson v Beckett ([1774] 4 Burr 2408) that there was no such thing as a perpetual copyright at common law parallel to the Statute of Anne. It bestowed the right on "the Two Universities in England, the Four Universities in Scotland, and the several colleges of Eton, Westminster, and Winchester to hold in Perpetuity their Copy Right in Books given to or bequeathed to the said Universities and Colleges".

So why do I care, surely the CDPA 1988 or even one of its predecessors repealed the Act? Well, yes and no. In para 13(1) Sch 1 CDPA 1988, it says that "[t]he rights conferred on universities and colleges by the Copyright Act 1775 shall continue to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force and shall then expire." Para 13(2) goes on to state that exceptions and limitations, remedies, provisions with respect to licensing and the provisions on the Copyright Tribunal apply to those rights in the same way as in relation to "normal" copyright.

While technically repealed by the CDPA 1988, the Copyright Act/Universities Act 1775 is still in force for practical purposes and continues to be applicable until 31 December 2039. Given that state of affairs, I find it very vexing (am I falling into 18th century parlance here, or do you still say that?) that I cannot seem to find the complete text anywhere. The Legislation Services Team at legislation.gov.uk have informed me that there are no plans to include the Act on their website in the foreseeable future either.

If any of our kind readers happen to have the text of the Act, I would be very grateful if they could post it in the comments section or email it to me. I would also be very interested to hear whether the list of beneficiaries was extended at any point in time (hello, University of London colleges?) and if anyone knows of any practical cases where that right was enforced. Many thanks in advance!