Friday 2 September 2011

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So why do I care, surely the CDPA 1988 or even one of its predecessors repealed the Act?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While technically repealed by the CDPA 1988, the Copyright Act/Universities Act 1775 is still in force for practical purposes and continues to be applicable until 31 December 2039.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 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!


Fantasy Mole said...

If following links don't work, search Google Books for "Winchester to hold in perpetuity". Thanks for your fascinating work.

Gillian Spraggs said...

You will find the act online here.

Tomas Gomez said...

You can find a copy in the appendix to GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF COPYRIGHT Appx at p. 18 (1847). It is on Google Books.

AndyJ said...

I can't help with the text, but I have found this link useful in the past:

Francis Davey said...

Ghastly isn't it? There is a tendency to think that "repealed" means the same thing as "no longer interesting", which is quite wrong. In practice repealed legislation can lurk like a snake in the grass to bite the unwary.

Anyway, as far as I know the act was only "extended" to Trinity College, Dublin by the Copyright Act 1801 (41 Geo 3, c107, section 3). I think section 3 simply restates the 1775 Act provision for Trinity College but you should check I'm right about that.

I doubt there was any subsequent extension. In section 27 of the Copyright Act 1842, the list of institutions affected is given and no more appear to have been added except those in the 1775 and 1801 acts.

Of course someone might have slipped a perpetual copyright provision in between 1842 and 1911 but I doubt it. It would very much go against the grain of the way copyright developed in that period.

While the 1842 act continued the effect of the 1775 and 1801 acts, as you know they were repealed by the 1911 act and from then on no new perpetual copyright could be created.

It is a rather limited right - for example if a university authorises publication by a third party, that ends the right (as I understand it).

You don't give your email on the website, so I'll put the 1775 and 1801 acts in an email to the long-suffering Jeremy.

Monika said...

Thanks a lot, everyone! Your help is much appreciated :)


Anonymous said...

If lawyers had their way all copyright would be perpetual. Governments tend to side with them (look at Walt Disney, Peter Pan, sound recordings extension). The Public Domain interest, alas, has no protector.