The art of writing is the art of discovering what you believe.
Gustave Flaubert

Tuesday 21 April 2015

Reversion, reversionary rights

It is common for copyright assignments, so as not to be unreasonably in restraint of trade, to be subject to statutory provisions cutting them short during the post-mortem term of protection. In UK copyright law (strictly speaking, in Imperial copyright) the Copyright Act 1911 dealt with the reversion of copyright in the proviso to section 5(2):
(2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorised agent
Provided that where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him otherwise than by will after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void.
This was tied up with the extension of copyright protection to 50 years post mortem auctoris in the 1911 Act. Under the 1842 Act it had been seven years PMA, or a maximum of 42 from first publication. Paragraoh 28(3) of Schedule 7 to the 1956 Act preserved the proviso, for certain types of assignment made before 1 June 1957 (when the 1956 Act came into operation). In Redwood Music v Francis Day & Hunter [1978] RPC 429 Goff J (at 434) noted that Parliament had not thought fit to continue with the proviso in the 1956 Act. Paragraph 27(1) of Schedule 1 to the 1988 Act again preserved the proviso, which was far from being a dead letter: an assignment made as recently as 31 May 1957 would have been prevented from dealing with the second half of the 50 year post mortem period of protection, so the proviso retains some potency even now. However, it is now settled that the proviso does not apply to post-1 June 1957 assignments: Novello & Company v Keith Prowse Music Publishing Co Ltd [2004] EWHC 766 (Ch). There, the parties both claimed copyright in various works by the celebrated English composer, Richard Addinsell (1904-1977), most famous for his "Warsaw Concerto", from the music to the 1941 film Dangerous Moonlight (known much less romantically in the United States, at whom as propaganda it was clearly aimed - just look at the clip to which I gave you the link above - as Suicide Squadron). Novello claimed under an assignment made in 2000, which would have been ineffective if earlier assignments dating from the 1940s and 1973 had dealt with the reversionary rights. The earlier assignments could not have included the reversion, but the 1973 instrument, Patten J held, did (and it is worth noting that it expressly mentioned that it was intended to ensure that the assignment of rights was dealt with under the 1956 Act).

In the United States, which is perhaps the only country which still retains reversionary rights for contemporary works and assignments, the rights revert after 35 years (with no consideration of whether the post mortem term has begun).

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