Perpetual copyright

Perpetual copyright refers to a copyright which does not expire. It is highly uncommon, as the current laws of all countries with copyright statutes set a standard limit on the duration, based either on the date of creation/publication, or on the date of the creator's death. (See List of countries' copyright length.) Exceptions have sometimes been made, however, for unpublished works. Usually, special legislation is required, granting a perpetual copyright to a specific work.

Common law copyright

Main article: Common law copyright

When the statutory copyright term provided for by the Statute of Anne, the first copyright statute, began to expire in 1731 London booksellers thought to defend their dominant position by seeking injunctions from the Court of Chancery for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743–1748), the London booksellers turned to common law and starting a 30 year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v. Kincaid (1749–1751) and Tonson v. Collins (1761–1762). A debate raged on whether printed ideas could be owned and London booksellers and other supporters of perpetual copyright argued that without it scholarship would cease to exist and that authors would have no incentive to continue creating works of enduring value. Opponents of perpetual copyright argued that it amounted to a monopoly, which inflated the price of books, making them less affordable and therefore prevented the spread of the Enlightenment. London booksellers were attacked for using rights of authors to mask their greed and self-interest in controlling the book trade.

When Donaldson v Beckett reached the House of Lords in 1774 Lord Camden was most strident in his rejection of the common law copyright, warning the Lords that should they vote in favour of common law copyright, effectively a perpetual copyright, "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". Moreover he warned that booksellers would then set upon books whatever price they pleased "till the public became as much their slaves, as their own hackney compilers are". He declared that "Knowledge and science are not things to be bound in such cobweb chains." In its ruling the House of Lords established that copyright was a "creature of statute", and that the rights and responsibilities in copyright were determined by legislation. By confirming that the copyright term, that is the length of time of work is in copyright, did expire according to statute the Lords also affirmed the public domain. The Donaldson v Beckett ruling confirmed that a large number of works and books first published in Britain were in the public domain, either because the copyright term granted by statute had expired, or because they were first published before the Statute of Anne was enacted in 1709. This opened the market for cheap reprints of works from Shakespeare, John Milton and Geoffrey Chaucer, works now considered classics. The expansion of the public domain in books broke the dominance of the London booksellers and allowed for competition, with the number of London booksellers and publishers rising three fold from 111 to 308 between 1772 and 1802.

There is however still disagreement over whether the House of Lords affirmed the existence of common law copyright before it was superseded by the Statute of Anne. The Lords had traditionally been hostile to the booksellers' monopoly and were aware of how the doctrine of common law copyright, promoted by the booksellers, was used to support their case for a perpetual copyright. The Lords clearly voted against perpetual copyright, and eventually an understanding was established whereby authors had a pre-existing common law copyright over their work, but that with the Statute of Anne parliament had limited these natural rights in order to strike a more appropriate balance between the interests of the author and the wider social good. According to Patterson and Livingston there remains confusion about the nature of copyright ever since. Copyright has come to be viewed both as a natural law right of the author and as the statutory grant of a limited monopoly. One theory holds that copyright's origin occurs at the creation of a work, the other that its origin exists only through the copyright statute. In 1834 the Supreme Court ruled in Wheaton v. Peters, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.

Portugal

Portugal amended the Copyright Act in 1927, from its previous 50 years modified Copyright term to "perpetual". However, this stipulation was withdrawn in 1966.

United Kingdom

The UK Copyright Act 1775 established a type of perpetual copyright under which the Authorized or King James Version of the Bible was allowed to be printed only by the Royal printer and by the printers of the Universities of Oxford and Cambridge. This provision was abolished by the Copyright, Designs and patents Act 1988, but under transitional arrangements (Schedule I, section 13(1)) these printing rights do not fully expire until 2039.

J. M. Barrie's play Peter Pan, or The Boy Who Wouldn't Grow Up is covered by special legislation establishing that Great Ormond Street Hospital may collect royalties in perpetuity. However, this is not strictly-speaking a perpetual copyright because the hospital does not retain creative control over the work, due to EU law which sets a 70-year limit to copyright duration. Note that the provision applies to the play and to performances and adaptations of it, not to the earlier Peter Pan stories in The Little White Bird.

United States

In the United States, perpetual copyright is prohibited by its Constitution, which provides that copyright is "for limited times". However, it does not specify how long that term can be, and it has successively been extended by Congress, retroactively extending the terms of any copyrights still in force. Following the enactment of the Copyright Term Extension Act in 1998, a coalition of plaintiffs led by publisher Eric Eldred argued that this act and a previous extension of the copyright term in the 1970s had created a de facto "perpetual copyright on the installment plan". This argument was rejected by the US Supreme Court in Eldred v. Ashcroft, which held that the term of copyright may be extended by Congress, so long as it is still a limited term at the time of each extension. Commentator Mark Helprin explicitly supports the enactment of perpetual copyright through this method of extensions by Congress.

Singapore

Pursuant to Section 197 of the Copyright Act, unpublished governmental literary, dramatic and musical works are under perpetual copyright, but once published, they are copyrighted for 70 years following publication.

See also

• Orphan works