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Has the copyright crocodile finally caught Peter Pan?

January 2008 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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Time runs out for everyone in the end, even 'the boy who wouldn’t grow up'. First performed in 1904, and published as a book in 1911, Peter Pan by JM Barrie remains a major commercial success. On 31 December 2007, however, the copyright in Peter Pan will expire across most of Europe, 70 years after Barrie’s death.

This will be a high-profile example of a phenomenon that is about to affect many well-known literary, dramatic, musical and artistic works that were created decades ago, but still have a sizeable, and profitable, audience.

REWARDING CREATIVITY AND CONTROLLING A LEGACY

Expiry of copyright is, of course, nothing new. Any literary, dramatic, musical or artistic work created by anyone who died in 1936 or earlier has already lost copyright protection. But Peter Pan is an example of a work that has had the full modern media treatment, spawning numerous versions, including films, animated features, TV programmes and stage adaptations, and store-fulls of merchandise. Most recently, a character apparently based on Wendy has controversially been included in an ‘adult’ novel by the celebrated graphic novelist Alan Moore (although the book will not be published in the UK until 2008).

Expiry of the Peter Pan copyright is therefore likely to provide further fuel for the ongoing debate about how long copyright should last, and whether the term of protection currently afforded by copyright law is long enough both to reward the author’s creativity and enable adequate control of the work’s legacy.

When some order was first brought to global copyright under the Berne Convention of 1886, the intention was to reward authors and the first two generations of their descendants by affording them control over the copyright, and thus giving them the chance to earn royalties. A period of the author’s life, plus an additional 50 years after the year of death, seemed long enough to achieve this for literary, dramatic, musical and artistic works.

However, people began to live longer, and the ‘long tail’ (the period of time for which rights in works remain of value) increased, thanks to the development of new forms of media and exploitation. Pressure therefore grew to extend the term.

EU TERM DIRECTIVE

Despite the Berne Convention, some countries took a different approach to the permissible copyright term, with some allowing a longer period. Although the UK had kept the ‘life plus 50 years’ term, some EU member states, such as Germany, had a ‘life plus 70 years’ term. Pressure for change in Europe increased, and resulted in the Term Directive (EU Directive 93/98/EEC on harmonising the term of protection of copyright and certain related rights), which increased the term to the life of the author plus 70 years.

The UK’s principal copyright statute (the Copyright, Designs and Patents Act 1988) was amended to implement the Directive into UK law under the Duration of Copyright and Rights in Performances Regulations 1995, which came into force in 1996.

The Term Directive therefore limited access to a range of material that would otherwise have been in the public domain. In countries like the UK, its effect was not only to extend the life of existing copyright works (which immediately and automatically qualified for the new term), but also to revive lapsed copyrights in works that were still in copyright in any EU member state on 1 July 1995.

In respect of lapsed then revived copyright works, the Term Directive gave some leeway for uses of the works which had commenced on the assumption that the term had already expired. Peter Pan was one such work. As Barrie died on 19 June 1937, the copyright expired on 31 December 1987 under the old rule, and was then revived in 1996.

CURRENT DEBATE

Although the copyright in Peter Pan will expire across most of Europe in December 2007, the position will vary in other territories. In the US, for example, it is not yet clear when the copyright will expire, as the applicable term for Barrie’s work there arguably runs from the date of publication, and there is some debate about which of his works should be regarded as first publication for these purposes.

Other works that will soon be affected by the expiry of their copyright are not limited to the world of literature, though fans of Edith Wharton will note that she also died in 1937. Sound recordings have a copyright term of 50 years from date of first release, regardless of the recording artist’s life. This means that copyright in recordings from the infancy of pop, such as those by Cliff Richard, are about to expire. (It should be remembered that the copyright in the music and lyrics have a term of the life of the composer/author plus 70 years. The works of George Gershwin and Maurice Ravel are about to lose protection, as they too died in 1937.)

The recorded music industry, with Cliff as its standard bearer, has been lobbying vigorously for this term to be extended. The 2006 Gowers Review of Intellectual Property came out against doing so, a position echoed by the UK government, though the Conservative Party appears supportive.

GREAT ORMOND STREET HOSPITAL EXCEPTION

But what about Peter Pan’s ‘perpetual’ copyright? Does this trump the effects of the Term Directive? The answer is it does, and, in the UK at least, the copyright will largely remain in force. Barrie bequeathed the copyright in the work to Great Ormond Street Hospital in 1929. In 1987, former Prime Minister Jim Callaghan successfully proposed an individual exception for the work from some of the effects of copyright law in the UK (s301 of the Copyright, Designs and Patents Act 1988). Mirroring Pan’s eternally youthful character, this unique exception provides that royalties

‘
 in respect of the public performance, commercial publication, or communication to the public of the play “Peter Pan” by Sir James Matthew Barrie, or of any adaptation of that work
’

should be paid to the hospital in perpetuity (provided it remains in the hospital’s ownership). This provision is unaffected by the expiry of the work’s copyright in 2007. Anyone seeking to use the work for any such use will therefore need to pay royalties to the hospital, although the hospital will no longer be entitled to control what uses are made of the copyright or require royalties to be paid for other types of use (ie any use outside the UK or anything non-commercial).

By Mark Owen, partner, Harbottle & Lewis LLP. E-mail: mark.owen@harbottle.com.

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