Cc-uk mailing list

["Andres Guadamuz" <a.guadamuz AT ed.ac.uk>]

Miguel,

I agree with Jonathan Mitchell that this is a matter for Spanish copyright
law. As such, you can find the Spanish "Ley de propiedad intelectual" here: 
http://civil.udg.es/normacivil/estatal/reals/Lpi.html 

The harmonisation of copyright law was implemented in Spain through Ley
27/1995, October 1995; and it was incorporated into the existing copyright
legislation. You will find that the transitory provisions for the Spanish
law are exactly the same as those for the UK, because both must comply with
Art. 10(2) of the Directive 93/98/EEC (the copyright extension directive).
The Transitory provision 13 in the Spanish law reads:

"2. Los plazos de protección contemplados en esta Ley se aplicarán a todas
las obras y prestaciones que estén protegidas en España o al menos en un
Estado miembro de la Unión Europea el 1 de julio de 1995 en virtud de las
correspondientes disposiciones nacionales en materia de derechos de
propiedad intelectual [...]"

This provision is quite clear. If the work was under copyright protection
anywhere in the EU before July 1, 1995, then the copyright will be revived.
Because Germany had 70 years protection, then it should be assumed that
Chesterton's copyright has been revived. Sorry about that, but the agent is
unfortunately right. 

I had another question. Even if the work was in the public domain, how can
it be justified to distribute it with an
Attribution-NonCommercial-ShareAlike licence? I am trying to get my head
around that one, but I cannot see the reason for it.  

Saludos,

-------------------------
Andrés Guadamuz
AHRB Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz AT ed.ac.uk
http://www.law.ed.ac.uk/ahrb/
 

-----Original Message-----
From: cc-uk-bounces AT lists.ibiblio.org
[mailto:cc-uk-bounces AT lists.ibiblio.org] On Behalf Of Miquel Vidal
Sent: 28 July 2004 03:24
To: Damian Tambin; Prodromos Tsiavos
Cc: cc-uk AT lists.ibiblio.org
Subject: [Cc-uk] About Chesterton and public domain

Dear friends at Creative Commons,

We are participating in the project Creative Commons Spain and we have
recently published a novel by G.K. Chesterton, "The Flying Inn" (1914, "La
taberna errante" in Spanish) with a Creative Commons (1) licence and a free
download version on the internet (2).

While we were preparing the book, we got some information about the
copyright situation in the case of Chesterton. Some friends at other
publishing houses who had done books by him told us Chesterton was already
public domain: he died in 1936, and since he was British, had become public
domain in 1986, i.e. 50 years after his death.

Therefore, when the European "harmonization" of copyright took place in
1995 (3), Chesterton had been in the public domain for nine years and we
understand he was not affected by the aforementioned harmonization in the
UK.

We understand that the extension from 50 to 70 years as a consequence of the
EU harmonization on 1 January 1996 ONLY affects those works that on
31 December 1995 were under copyright or whose copyright was about to
expire. That is not the case with Chesterton, whose copyright expired in
1986 according to the British legislation.

The book has already been issued. It is selling well and we have just
published a second edition. This provides more evidence that putting the
whole book up on the web for free does not damage its sales, quite the
opposite. But a literary agent in Barcelona maintains she's the agent for
the copyright of Chesterton in Spanish and says that Chesterton's copyright
was indeed revived. In a very nasty way, she demands some money. Of course,
that agent has done absolutely nothing for Chesterton's work: she just gets
money from whoever publishes a book by Chesterton, acting like a parasite
for any independent publishing initiative.

We have consulted different sources but we get contradictory interpretations
of the law. Some people say the law has no retroactive effect in order to
avoid unfair competition between those who published Chesterton between 1986
and 1995 and those who did it after the harmonization; but ohters say the
copyright was extended and works whose copyright had expired are brought
back into copyright. We know Creative Commons has a detailed analysis of
public domain and we would like your advice on the subject.

We would like your opinion on the following:

1) What legislation is applied to a British writer dead in 1936? Does the
British "revived copyright" of 1995 apply? Is it retroactive?

2) Can a Spanish literary agent exploit the copyright of a British writer
dead in 1936 **after** the British harmonization of 1995?

3) Is there any jurisprudence, ruling or legal precedents about the "revived
copyright"  for English writers who were in the public domain in 1995?

This is not just an economic issue but the point is these agents claim the
right to decide if a writer's work can or can not be published. In our
opinion, what is at stake here is the "common goods, that's why we need your
support and we think you might be interested too as it is an English writer.
Also, if eventually there's the need to organize a public campaign, we will
need to have all the details about the British legislation on it.

Yours,

Miquel Vidal
Amador Fernández-Savater


Notes

(1)
http://sindominio.net/biblioweb/literatura/flyinginn-es/node30.html

(2) http://sindominio.net/biblioweb/literatura/flyinginn-es/

(3)
http://www.intellectual-property.gov.uk/std/faq/copyright/extended.htm

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