Introduction
This chapter chronicles the history of statutory reversion rights in England and other Commonwealth countries.Footnote 1 While reversion was part of the copyright system since the Statute of Anne, and has appeared in various forms since, it has had remarkably little success in benefiting authors or their heirs. It’s sometimes dismissed for that reason – the fact that reversion hasn’t worked very well is offered as evidence that it can’t work very well. But we show that these previous iterations were set up for failure, with every example having been implemented in ways that made it impossible to achieve their author-protective aims.
We contrast those failures with the shining success of the UK’s ‘Terms of Trade’ reforms, which have massively increased British film and TV revenues along with the international reach of British stories. Though technically a restriction on what creators can be obliged to give away rather than a reversion right per se, they achieve the same end – and provide powerful real-world evidence of how interventions that centre creators can further copyright’s access and rewards aims.
Finally, we briefly summarise the current state of play on reversion reform in South Africa, Canada and the UK. Although political realities continue to make it extremely difficult to enact reforms that would meaningfully shift money and power from investors to creators, recent developments show that reversion’s potential to do so is beginning to be well and truly recognised.
2.1 1710: The Birth of Statutory Copyright and Reversion Rights
Statutory reversion rights were born with the first modern copyright statute. The UK’s Statute of Anne provided that rights to new works would last for 14 years, after which the ‘sole right of printing or disposing of copies’ would return to their authors, if still alive, for 14 years more.Footnote 2 If the authors did not survive the initial period, the copyright ended after that first 14-year term.
It’s unclear exactly what Parliament meant to achieve via this dual-term framework,Footnote 3 but the consensus suggests the reversion right was intended to benefit authors by giving them the right to decide what happened to their books once the initial term expired. As Bently and Ginsburg explain, ‘[w]ere the objective otherwise … there would be no point dividing the “sole right” into two periods, nor tying the second to the author’s survival, much less designating the author as the person to whom the exclusive right shall “return”’.Footnote 4 The return of rights seems to have been intended to put authors in a position ‘to grant rights anew from a stronger bargaining position should her work have earned a substantial audience’,Footnote 5 particularly where the initial payment was insufficient in comparison to the book’s subsequent popularity.Footnote 6
In practice, however, authors rarely benefited from the second term. Sometimes this was because they died before it could accrue, or because their book stopped selling within the first 14 years. But even when they survived and their books kept their value, it was common practice for publishers to purport to take authors’ renewal rights upfront, together with transfer of the initial term, and without payment of any fresh sum. As book historian Harry Ransom explains, ‘[t]he true intention of this proviso was ignored from the start: authors continued to sell their books outright’.Footnote 7 Or perhaps more accurately, considering the relative bargaining power of the various parties: publishers were powerful enough to insist on extracting both the initial and reversionary terms at the time of the initial contract, and so that’s exactly what they did.
The text of the statute was ambiguous as to whether upfront takings of both terms would be valid, or whether publishers needed to wait until the second term to bargain for the additional 14 years of rights.Footnote 8 Obviously though, if publishers could simply extract all rights upfront, the reversion right would only benefit those who had sufficient bargaining power to hold onto it – and in practice, that was very few.
Writers and their supporters sought to combat this practice via new reforms, and in 1737 a draft bill was advanced to limit what authors could be obliged to give away.Footnote 9 Though crafted almost 300 years ago, its framing of the problem (and potential solution) still feels timely. The bill recognised the information problem we introduced in Chapter 1, that comes about from the fact that most copyright contracts are signed before anyone knows what the work is worth: ‘foreasmuch as the true Worth of Books and Writings is, in many Cases, not found out till a considerable time after the Publication thereof’. It also acknowledges that authors might be obliged to sign away the rights prematurely: ‘Authors, who are in Necessity, may often be tempted absolutely to sell and alienate the Right … before the Value thereof is known.’
The 1737 bill would have extended copyright to last the author’s lifetime plus 11 years, but simultaneously have limited grants during the author’s lifetime to a maximum of 10 years at a time. Upon expiry of each term, authors and publishers could enter into fresh grants – now each equipped with much more knowledge about what the work was worth. It’s worth taking a moment to consider how different the creative industries might look like today, had that been the model everything else was built on.
Obviously, that didn’t happen. The bill failed to pass into law, with Deazley explaining that, ‘[f]rom the booksellers’ point of view, [it] was anathema’.Footnote 10 His commentary suggests that it was the clauses limiting the booksellers’ rights that prevented the bill from passing. ‘The prospect of having to renegotiate contracts with the author every ten years must have made most of the metropolitan book trade baulk in disbelief.’Footnote 11
Publishers continued asserting that their initial contracts with authors gave them rights not only for the full initial term, but also the entirety of the renewal.Footnote 12 In exchange, authors typically received a single lump sum payment – and not a penny more in the event they lived long enough to trigger the second term.Footnote 13
The validity of publisher attempts to extract the renewal rights upfront was not much tested, and there was considerable uncertainty about the formalities that would need to be satisfied (if any) for their extraction to be valid as a matter of law.Footnote 14 However, an unreported 1765 decision indicated pre-vestiture assignments could be valid,Footnote 15 and in 1786 it was held that sufficiently broad language could indeed transfer the reversionary right before it vested, even in the absence of a deed.Footnote 16 The courts that reached these findings may have been influenced by notions of freedom of contract, mentioned in Chapter 1, which were enjoying primacy around this time.Footnote 17
Even where the contracts did not expressly deal with the renewal term – and Bently and Ginsburg’s historical research demonstrates that this was often the caseFootnote 18 – authors were unlikely to have succeeded in publishing their books elsewhere. By the 1730s, control of book rights had come to be concentrated in the hands of a powerful bookseller syndicate known as the Conger.Footnote 19 As Patterson explains in his comprehensive history, ‘there grew up a tacit understanding among the booksellers [publishers] of the eighteenth century that there should be no interference with each other’s lapsed copyrights’, with any who dared publish a competitor’s title after its statutory copyright expired being bullied and shunned by their peers.Footnote 20 Such practices would no doubt have been applied with even more vigour to those who tried to recognise the author’s reversionary right during that term.
Analysis of historical records shows that the Statute of Anne did little to improve the economic position of authors, with authors getting paid about the same under the system of statutory copyright as under the licensing system that preceded it.Footnote 21 The reversion right seems to have been particularly ineffective, with Bently and Ginsburg’s historical research unearthing just four documents that even dealt with it explicitly – most notably and ironically the contract for Adam Smith’s Wealth of Nations.Footnote 22 Smith had held onto the copyright after the work was published in 1776 before finally selling the copyright outright for £300 in 1788.Footnote 23 In 1790, when rights ‘returned’ to him under the statute, his publishers paid him that same amount again to renew their copyright for another 14 years.Footnote 24 Little else is known about the circumstances surrounding this transaction, but it’s likely that the initial success of Smith’s treatise gave him the bargaining power necessary to withhold the second term. Whatever the reason, this case shows the reversion right had the potential to provide direct economic benefits to authors where they were able to hold onto it until it vested. If improving the lot of authors had indeed been parliament’s intention when it designed the dual term framework, its neglect in not appropriately securing the reversion right to those intended beneficiaries goes a long way to explaining why it failed.
2.2 1814: Reversion Rights Extinguished
With the Statute of Anne’s reversion right having been rendered all but useless by this combination of judicial interpretation and industry practice, it had few mourners when it was finally repealed by the British Parliament in 1814. Its replacement substituted Anne’s dual term with 28 years of protection, or the author’s lifetime if they were still living after that.Footnote 25
The new law was the result of spirited publisher lobbying. Although they had been successful in using contracts to wrest away all authors’ rights upfront, Anne’s second 14 years wouldn’t accrue unless the author was still alive at the expiry of the first. But rather than pointing out how this harmed their commercial interests, publishers instead argued the old system had been ‘productive of great hardships to the families of authors’.Footnote 26 An anonymously published pamphlet purporting to represent the views of authors (but subsequently attributed to solicitor Sharon Turner, who had given evidence on behalf of the booksellers when the 1814 law was being debatedFootnote 27) emotionally evoked those hardships:
The author’s family loses all the profits of his labours at the very time when, from the event of his death, they are in the greatest need of them. It seems the dictate of reason and justice that authors should have at least the full twenty eight years, without any reference to the life of the author.Footnote 28
Bently and Ginsburg describe this argument as ‘tendentious to say the least’, since so many publishing contracts purported to extract the full right upfront, and because even those few authors who held on to their copyrights initially still tended to sell them within the initial term.Footnote 29 As they point out, had the real intent been to benefit the families of deceased authors, the renewal term could have vested in them, as became the law in the US and Canada soon after.Footnote 30
Thus, although the linkage between author’s lifetime and copyright term appeared to be a victory for creators, in practice it was unlikely to serve them much better than the old regime: those additional rights could be (and were!) acquired in their entirety by publishers, often for a fixed sum rather than ongoing royalties.Footnote 31 Accordingly, Bently and Ginsburg describe it as ‘of largely symbolic, rather than pecuniary, significance’, before acidly noting the disconnect between rhetoric and practice:
The amendment reflected the legal embodiment of what Bracha has called ‘the ideology of authorship,’ at the same moment that the law abandoned its attempt to intervene in the functioning of the book market to protect the interests of real, flesh-and-blood, writers.Footnote 32
2.3 1911: Reversion Rights Return in the UK and Commonwealth
Statutory reversion rights next appeared almost a century later with the passage of the Imperial Copyright Act 1911 (UK) (‘Imperial Act’), which applied throughout the British Empire,Footnote 33 and was adopted by self-governing dominions including Australia,Footnote 34 CanadaFootnote 35 and New Zealand.Footnote 36
That law extended copyright to the author’s life plus 50 years, but with a wrinkle found in a proviso to section 5(2): authors could not assign or license their rights to anyone for longer than their lifetime plus 25 years. Once that time passed, rights would revert, automatically, to their heirs, regardless of any contract to the contrary.Footnote 37 The reversion right contained within the proviso applied to all instances where the author was the first owner of the copyright, except in cases involving collective works.
When we first wrote about this right back in 2018–19, we described its origin as something of a mystery.Footnote 38 The Committee commissioned to review Britain’s copyright law in light of the 1908 Conference on the Berne Convention made no such recommendation, and even the contemporaneous legislative debates indicated confusion about its source.Footnote 39 Fortunately, copyright expert Dr Elena Cooper took that as invitation to fill the gap, and we are now able to draw on her historical research to better explain how it came to be.Footnote 40
The Berne Convention’s Berlin revision mandated that copyright terms be extended to life plus 50 years. For the UK, that was a substantial jump. Until it was implemented, literary copyrights lasted 42 years or 7 years after the author’s death, whichever was longer.Footnote 41 Engravings and sculptures were covered by copyright for just 28 years from publication.Footnote 42
As Cooper explains, that jump was controversial on two main grounds. First, it was criticised for favouring the interests of assignees over those of authors.Footnote 43 Like the emotive rhetoric that supported the removal of Anne’s reversionary term in favour of a single lump sum term, the rhetoric used to sell the term extension strongly emphasised the interest of authors in providing for their families after their passing. However, critics pointed out that it would do little to ensure that. Among them were Lord Courtney, debating the bill in the House of Lords:
I believe that this change in the law will not be found to operate at all to the advantage of authors, speaking broadly. It will be found to operate to the advantage of publishers only, who will get an extended period of the copyright in the books which they publish.Footnote 44
The reversion right was ultimately proposed by the Solicitor-General as a way of addressing this controversy.Footnote 45 Alive to the possibility that an author would be obliged to contract away rights for the entirety of the copyright term (however long that might be), the amendment sought to ensure that their heirs would have an opportunity to benefit from the extension in some meaningful way. In other words, it sought to ensure the scope of rights better matched the rhetoric being relied upon to justify the extension.
The other key criticism of the term extension was that it would impede access to important knowledge and culture, both by reducing access to public domain works and keeping prices higher for longer.Footnote 46 These concerns were addressed via two compulsory licensing provisions. A proviso to what became section 3 in the Imperial Act gave any publisher the right to republish works 25 years after the author’s death upon payment of a 10 per cent royalty. Section 4, which applied where copyright owners had withheld public access to works after the author’s death, authorised the grant of compulsory licences for the purposes of republication. Parliament hoped that these provisions would prevent important books from being lost altogether, or being accessible only at a high price.Footnote 47
The reversion right is sometimes called the ‘Dickens’ provision’, a nod to the public outrage in the decades prior to its passage over publishers benefiting from the sale of Charles Dickens’ books while his descendants were living in poverty.Footnote 48 While there’s no direct link – Dickens’ longest literary copyrights had expired by the time the 1911 Act came into operation – it’s likely that scandal drove public and parliamentary support for meaningful protections for author heirs.
But, like the Statute of Anne before it, this law signally failed to improve the lot of authors or their heirs, with Copinger and Skone James describing ‘the benefits to the author’s family or dependants [as] somewhat illusory’.Footnote 49 The reasons are obvious with hindsight, and indeed should have been anticipated and addressed at the time of drafting. While the legislature learned from the previous failure by explicitly making it impossible for the author to transfer the reversionary right during their lifetime, it regrettably introduced new shortcomings that proved almost as detrimental.
One of the most substantial arises from the way in which the law actually returns the rights. We have been discussing the 1911 right as being for the benefit of author heirs, but that’s a convenient shorthand: technically, reverted rights vested in the author’s ‘legal personal representatives as part of his estate’. This can be contrasted with the US termination rights (discussed in Chapter 3), which vest directly in heirs. The Imperial right’s structure is problematic because, by 25 years after the author’s death, when the rights actually vested, few estates would still be open.Footnote 50 Assets that accrue so long after death can be a headache for executors. The available evidence suggests that few executors of author estates were even aware of their reversionary assets, and that those who were often sold it off cheaply soon after death so they could fully wind them up.Footnote 51
Another reason for the lack of value is the way the reversion right interacted with section 3’s compulsory licence. Recall that section 3 (the compulsory royalty) and section 5 (the reversion right) both applied from 25 years after the author’s death. Their combined effect was to give heirs a fresh opportunity to benefit from their copyrights while capping the financial upside: after all, nobody would pay more than the 10 per cent royalty they could obtain under the compulsory licence, and the fact they could not be guaranteed the exclusive right to publish (since anyone could take advantage of the compulsory licence) further reduced the value.Footnote 52
In practice, both the reversion right and compulsory licence were largely ignored from the get-go: ‘[p]ublication by former publishers of technically reverted works simply continued, and royalty payments continued to be made pursuant to and at the royalty rates contained in prior grants.’Footnote 53 The law worked so poorly that it might as well not have existed at all.
2.4 1956–1968: Reversion Repealed Again
Countries were prompted to again re-evaluate their copyright laws following the 1948 Brussels Revision of the Berne Convention. In the UK, this process was led by the Gregory Committee. The compulsory licensing provisions in section 3 (entitling republication 25 years after the author’s death upon payment of a royalty) and section 4 (covering cases where the copyright owner withheld access from the public) were justifiably challenged for interfering with the rights mandated by Berne, and the Gregory Committee recommended their repeal.
However, it additionally recommended repealing section 5, the reversionary provision, due to a perceived link with the problematic section 3.Footnote 54 Remarkably, the Committee’s linkage of section 5 (the reversion right) and section 3 (the provision for compulsory licence) seems to have come about simply because of that shared reference to a 25-year period after the author’s death. That reasoning is woefully inadequate, especially since the two provisions had such distinct motivations. The contemporaneous parliamentary record, and subsequent judicial and academic commentators, agree the reversion right was intended to provide some protection to authors and their heirs where works had been subjected to term-long contracts that turned out to be disadvantageous.Footnote 55 The fact that the compulsory licensing provision was no longer possible did nothing to change the need for that protection. The Gregory Committee found it must be repealed regardless.
Its reasoning has been criticised, with neither the English Court of Appeal nor the authors of Copinger and Skone James on Copyright convinced of a link between the section 5(2) reversion right and the problematic section 3.Footnote 56 The Canadian committee tasked with post-Brussels review did not even consider whether the reversionary right was incompatible with Berne, suggesting it, too, was unconvinced by the Gregory analysis,Footnote 57 and the New Zealand review committee expressly disagreed that removing section 5(2) was a ‘necessary corollary’ to removing sections 3 and 4 of the Imperial Act.Footnote 58
Australia’s review committee (‘the Spicer Committee’) described the Berne compatibility of the reversion right as ‘somewhat doubtful’,Footnote 59 but provided no analysis or authority in support. That omission is particularly notable given its New Zealand counterpart had so recently reached the opposite conclusion. Proceeding from that view, the Spicer Committee observed that the reversion right could only be maintained if Australia refused to ratify Berne’s Brussels revision, and found it was not sufficiently beneficial to authors’ families to justify such drastic intervention.Footnote 60
In this regard too, its analysis was lacking. The Spicer Committee cited Copinger and Skone James on Copyright as authority for the proposition that the reversionary right’s benefits were limited, but seemingly failed to notice that Copinger’s criticisms of the limited benefits the reversionary right generated for heirs were inextricably entwined with the existence of section 3’s compulsory licence provision.
As flagged above, Copinger argued publishers did not pay much for reversion rights because the compulsory licence provisions meant they could not acquire an exclusive right, and in any event had the right to publish so long as they paid a 10 per cent royalty.Footnote 61 But section 3’s compulsory licence provision would have to be repealed to ratify the Brussels Act, and on Copinger’s reasoning that would increase the value of the reversionary right – a reality the Committee seemed to overlook.
Ultimately, the Spicer Committee recommended that Australia repeal its reversionary provision.Footnote 62 To the best of our knowledge, that was the only provision in Australia’s copyright law that directly secured benefits to authors or their heirs, as distinct from other assignees, making that cavalier disposal particularly worthy of note.
Had the Committee engaged in a fuller analysis of the treaty compatibility issue, the reversion right could have been kept – as was the case in Canada, and as was recommended in New Zealand. The New Zealand review committee had described removal as ‘a retrograde step’ that would benefit publishers or other assignees over authors’ families,Footnote 63 and reasoning that the proviso should be retained since it ‘can do no harm and may possibly do good’.Footnote 64 Unfortunately for authors, this point seems to be one of the very few on which the New Zealand Parliament disagreed with the Copyright Committee – it repealed the right despite a strong recommendation to keep it.Footnote 65
As well as being repealed in the UK, Australia and New Zealand, the Imperial reversion right has now also been abolished in nearly every other enacting country.Footnote 66
The Berne Convention is supposed to protect the interests of authors (as distinct from those of assignees), and the moral claims of author heirs were central to the campaign to secure Berne’s extension of rights to life plus 50 years. It’s ironic then that compliance with that Convention was used to justify the removal of one of the only provisions that focused on precisely that.Footnote 67
2.4.1 The Imperial Reversion Right Could Benefit Author Heirs
While none of the review committees identified any evidence about actual use of the reversionary interest by author heirs, two notable examples arising after the repeal suggest the New Zealand Committee’s view was correct: that the reversionary right originating with the Imperial Act could achieve its aim of benefiting author heirs.Footnote 68 These cases, discussed below, demonstrate some of the real-world potential that could be unlocked were we to take reversion rights more seriously.
2.4.1.1 Mbube: The Solomon Linda Story
In 1939, Solomon Linda recorded his song Mbube with the Gallo record label, in what was then the only recording studio in Africa. The third take was different to any version that had come before. ‘He just opened his mouth and out it came, a haunting skein of fifteen notes that flowed down the wires and into a trembling stylus that cut tiny grooves into a spinning block of beeswax.’Footnote 69
The saga that followed that moment of magic has been described as ‘one of the most complicated and convoluted music publishing-songwriting stories ever’,Footnote 70 and we don’t have room here to fully unskein it. But here are the key points. The song became a huge hit – the first South African record to sell more than 100,000 copies. It soon caught the attention of American folk legend Pete Seeger, who meticulously transcribed it before releasing it as Wimoweh with his band, The Weavers, in 1952. Their music publisher, Folkways, registered the song’s US copyright in January that year.
In May, Gallo registered its own US copyright claim telling Folkways the song was written by Linda but that it owned the rights. So it did – but the ink was barely dry on the transfer. Although the song had been recorded some 13 years earlier, the copyright was not formally assigned until April 1952, when Gallo called Linda into the office (he was working in a low-level job at their record pressing plant) and had him sign over the entirety of his rights to the song.Footnote 71 In exchange they paid him 10 shillings – about US$0.87.Footnote 72
With the new exposure from the Wimoweh cover, Mbube’s haunting melody quickly captured the imaginations of other musicians. More than 150 other versions came out.Footnote 73 Several were hits, but the song became part of the cultural zeitgeist with its appearance in Disney’s The Lion King as ‘The Lion Sleeps Tonight’.
While Mbube generated enormous wealth in its various forms, almost none of it went to Linda. He died in 1962 with just a few dollars to his name, his wife unable to afford a stone for his grave.Footnote 74 Indeed, even after The Lion King became a global phenomenon, Linda’s family received only meagre royalties. It’s not entirely clear, but it seems these came from Pete Seeger’s share of Wimoweh, which he tried to secure to Linda once he discovered the tune was not a traditional Zulu song as he’d originally been told, but one by a living composer. However, it seems that even Seeger’s minority share didn’t always reach his family, which continued living in poverty: one daughter died of AIDS-related complications when her family couldn’t afford the medicine that could have helped her,Footnote 75 and others worked as domestic servants.Footnote 76 While all this was happening, the powerful corporations who were benefiting most from the song strategised to keep it in their grasp, twice requiring Linda’s heirs to freshly sign over any rights they may have had on top of what they’d already extracted from Linda himself.Footnote 77
A spotlight was finally shone on the injustice in 2000, when South African journalist (and descendant of an apartheid-era prime minister) Rian Malan published an exposé in Rolling Stone.Footnote 78 The story captured global media attention, including a documentary. Leading South African copyright lawyer Owen Dean was approached by Gallo, now facing a PR nightmare for its role in the heist, and wondering what might be done.Footnote 79
Dean initially thought it was hopeless given how broadly the contracts were worded, but then he remembered an obscure reversion provision he’d come across a few years before – the Imperial Act had been law in South Africa until 1965. The proviso to section 5 had been repealed in South Africa as in most other countries, but under the transitional arrangements, it still applied to this work. Linda died in 1962, so in 1989 the song rights had reverted. Without fresh licences, subsequent uses would be infringing.
As discussed above, reverted rights technically vested in the author’s ‘legal personal representatives as part of his estate’. That technicality usually made things more difficult for heirs, since estates are usually wound up long before that, but here it turned out to be the saving grace. The additional agreements Linda’s wife and daughters had been obliged to sign extracted not only any rights they may have had at that time, but any they might obtain in the future. As Dean explains, ‘The effect of the assignments they executed would be that, once copyright in Mbube became vested in them, those assignments would be activated and immediately deprive them of their copyright in favour of the assignees.’Footnote 80 To avoid that happening, he came up with the plan of having an executor appointed to the estate as Linda’s legal representative. If successful, the executor would take ownership of the reverted rights.
Given the success of the song in its myriad forms, numerous individuals and companies could have been targeted by an infringement claim. The family’s legal team decided to target the most formidable of them all: Disney. That caused Gallo to withdraw its offer to fund the case, knowing how hard the media giant would fight, and aware of its ability to harm the record label’s own commercial interests. As one executive explained: ‘If Disney had withheld all the rights that Gallo held at that time, it would have had a major impact on our earnings.’Footnote 81
That would have probably been the end of the fight, had Linda family’s lawyers not persuaded the South African culture ministry to step in and fill the gap.Footnote 82 Once that was done, the underdogs obtained a big victory – an order attaching Disney’s South African trade marks as security for any award made against the corporation, effectively putting Donald Duck and Mickey Mouse on the line.Footnote 83 Dean remembers the retribution being swift and savage, just as Gallo had anticipated. ‘[Disney] reacted like scalded cats, and brought their heavy artillery to bear on us and anything connected to us.’Footnote 84
Despite that pressure, the parties eventually reached a confidential settlement acknowledging Linda as the original composer of what became ‘The Lion Sleeps Tonight’. A trust was established to take ownership of the song rights (avoiding the trap that was waiting for any heir who took ownership in their own right), and the compensation for past infringement as well as future royalties as agreed under the settlement. Critically, the royalty obligation was not limited to uses in South Africa (which were minimal), but worldwide.Footnote 85 In achieving that result, the applicants may have been assisted by the fact that identical reversionary rights applied throughout the Commonwealth, meaning that similar actions could have been launched in the UK and other nations.
Disputes remain ongoing about whether the licensees are actually paying what’s owed, and whether the settlement amount was fair.Footnote 86 However, as a result of the reversion right contained in the 1911 Act, Linda’s heirs have now received far more than they would have without it.
2.4.1.2 The Redwood Music Litigation
When he was 25, Fats Waller signed a contract assigning all rights in the ten songs from his Broadway musical Connie’s Hot Chocolates for US$500.Footnote 87 His work went on to make a great deal of money for other people, making this assignment precisely the kind of ‘improvident’ transaction the British parliament intended the reversion right to guard against.
Miriam Stern, a passionate advocate for songwriters and former director of the American Guild of Authors and Composers, got wind of the inequity around the Waller transfer, as well as those affecting the estates of other composers including Sergei Rachmaninoff, and thought the British reversionary right might be able to help. Though it had been repealed by the time she took up the cause, the UK law’s transitional arrangements meant it still applied to works created before 1957.Footnote 88 Motivated by concern for the heirs of composers including Waller, who were often too poor to afford lawyers, she set up the Miriam Rose Stern Agency (MRSA) to help estates enforce their reversionary rights and bargain for a fairer share. The MRSA quickly came to represent 177 estates and up to 40,000 songs.Footnote 89
Undaunted by the refusal of leading music publishers to negotiate with her agency, Stern initiated a series of test cases. The most critical issue concerned whether the assignment of the copyright in a song was the assignment of ‘the copyright in a collective work’, and thus excluded from the reversion right by the final sentence of the proviso to section 5(2). Most songs have lyrics written separately from the music, and the defendant music publishers strenuously argued that in such cases the reversion right did not apply.
At first instance Goff J agreed with the publishers, reasoning that songs comprising both music and lyrics (and thus both musical and literary copyrights) were indeed collective works.Footnote 90 Redwood had argued that songs were not collective works as conceptualised under the proviso to section 5(2), because that proviso only excluded assignments of the copyright in a collective work, and after all, the combination of the music and lyrics did not create a separate combined copyright.Footnote 91 But Goff J ruled such songs did fall within the scope of the exclusion, influenced not only by principles of statutory interpretation but also practical considerations: his Honour thought it would be highly inconvenient if ownership of different parts of a song were to change at different times.Footnote 92
A second test case, this time involving a song with jointly authored music and lyrics – that is, written by two authors together, rather than separately – evoked a different result. The reversion right was held to apply notwithstanding the inconvenience that might bring about.Footnote 93
The UK Court of Appeal had more good news for heirs, overturning the lower court ruling that reversion wouldn’t apply to songs with separate authors for music and lyrics.Footnote 94 While songs with lyrics and music written by different authors were confirmed to be collective works, they were nevertheless not excluded from the scope of the reversion right because ‘there is no separate and independent copyright in the song as a collective work’.Footnote 95 The only copyrights were those for the lyrics and music, and the reversion right applied to each.Footnote 96 Emphasising that the proviso’s intention ‘was to safeguard authors and their heirs’, the House of Lords upheld that decision.Footnote 97
This long battle translated to real benefits for songwriter heirs. In the case of the Fats Waller songs that began the whole saga, the previous music publisher acknowledged it no longer had any claim.Footnote 98 Within two years of the litigation finally ending, new deals entered into by Waller’s sons had already secured them some US$12,500, with ‘substantial additional sums expected’ to follow from sources such as theatrical licence fees.Footnote 99
2.4.1.3 Lessons from the Canadian Experience
Although these examples show that the Imperial right could achieve its aim of benefiting author heirs, their scant number (relative to the literally millions of works covered by the right across the Commonwealth) says much more about the legislature’s failure to achieve its aims. In Canada, where the equivalent right has so far survived both the wave of Berlin revision repeals, and multiple subsequent calls for its abolition,Footnote 100 we found just two reported examples where the Imperial right actually, or even potentially, benefited an heir.
The first Canadian example involved Theresia Winkler, the elderly former landlord of writer Thomas P Kelley Jr, and heir and executor of his estate. Kelley, who died in poverty in 1982, had been a prolific writer of pulp fiction – most notably two books loosely based on a vigilante murder which are estimated to have sold over a million copies.Footnote 101 Winkler succeeded in obtaining a declaration that the publishing and film rights in those books would revert to her in 2007, 25 years after the author’s death.Footnote 102 Subsequently, Darling Terrace Publishing, which appears to be run by John Winkler, republished Kindle editions of those books in 2019. This allows Kelley’s heirs to keep benefiting from sales of these books, but also keeps a fascinating part of Canadian history available to the public.Footnote 103
The second involved descendants of author LM Montgomery who, in the 1980s, discovered rights in the beloved (and highly lucrative) Anne of Green Gables series had reverted to them, and began licensing rights for the production of Anne merchandise, like dolls, clothing and souvenirs.Footnote 104 They terminated one of those licences for non-payment of royalties, and instituted legal action after the defendant – then the world’s largest Anne merchandiser – continued to use the names and likenesses.Footnote 105
The Court rejected the defendant’s argument that the heirs did not own the rights, finding they had a valid copyright interest from the rights having reverted to them, either as a result of the Canadian iteration of the Imperial law or transitional arrangements covering works that pre-dated it.Footnote 106 The Court didn’t have to decide which, because the heirs did not become aware of their interest until the mid-1980s – rendering the choice of avenue used to calculate the date the reversionary interest began immaterial. As a result, the heirs were able to benefit from their rights for only a few years before the Anne books entered the public domain.
2.4.1.4 The Imperial Reversion Right’s Illusory Promises
The fact that there was so little awareness around reversion even for such lucrative properties further demonstrates how poorly tailored this law was to the job at hand. Even in Canada, where it’s still on the statute books, it is routinely ignored, with licensees continuing to exploit works even after the rights automatically revert.Footnote 107 They can get away with that because, as Tarantino explains, lack of awareness of the law means relatively few estates assert their rights.Footnote 108 That lack of awareness follows from the fact that the right, overwhelmingly, has so little value. Since Canada repealed the compulsory licence provision, publishers can now be assured of exclusive rights during the reversionary term. However, their financial value is nonetheless impacted by the fact that rights don’t revert until a full generation after death, and because they vest in estates that by then probably no longer exist, making ownership complicated and costly to assert.
The fact it takes so long to kick in also raises the transaction costs of complying by making it harder to identify the heirs.Footnote 109 The copyrights may have been left to multiple people, who may be difficult to track down (or may even have died themselves) by the time the rights transfer to them.
While these criticisms of the Imperial right are valid, others have less merit. For example, a 1977 report published by Canada’s Department of Consumer and Corporate Affairs argues that the reversion right’s limitation on what can be assigned would tend to reduce the prices paid.Footnote 110 However, as discussed in Chapter 1, the time value of money and cultural depreciation mean that, at the time of entry into the original contract, publishers are exceedingly unlikely to pay any more for life plus 50 years than they would for life plus 25 years. Thus, a reversion right that kicks in so late is unlikely to have any downward effect on prices.
The same report criticises the right for being ‘defeatable by testamentary disposition’.Footnote 111 This is a reference to the fact that while the statute otherwise prohibits authors from disposing of the interest in their lifetime, it permits dispositions by will. In theory then, a rightsholder might subvert the intent of the statute by requiring an author to bequeath it the reversionary interest as well as their lifetime rights. The author might change their will later, but contracts involving transfer of property interests can survive death, so such circumstances might still give rise to a claim against the estate for breach of contract. Rather than being used to attack the case for reversion rights altogether, however, this risk could be managed by rendering void contracts bequeathing reversionary rights where the effective intent is to render those rights alienable, an option we examine further in Chapter 6.
Tarantino criticises the Canadian reversion right for creating uncertainty in publishers about when rights will revert,Footnote 112 but we don’t find this argument convincing either: they should know when their authors die, at least because it will result in the entitlement to royalties transferring elsewhere, and after that time they still have 25 years – a full generation! – to plan for the handover.
Tarantino also argues ‘exploiters will be disinclined to invest resources towards the exploitation of a work which is nearing the reversionary threshold, because they will be uncertain whether an author’s estate/heirs will assert an ownership claim’.Footnote 113 This argument is not persuasive either. The reversionary interest becomes assignable immediately upon death,Footnote 114 as Tarantino himself notes elsewhere,Footnote 115 and there’s nothing stopping the rightsholder from negotiating with heirs to buy the interest then (or at any later point) to secure their future investments.
Finally, Tarantino argues that further uncertainty arises because publishers don’t know ‘whether an author’s estate or heirs will be informed or savvy enough to become aware of the reversionary interest and assert ownership’.Footnote 116 But we don’t consider it a relevant detriment that publishers must factor in uncertainty over whether they will be successful in heisting an interest that rightfully belongs to others! They could always manage that risk by doing what the original lawmakers intended, and negotiating a fresh deal with the author’s heirs.
The real objection by rightsholders to Canada’s reversion law seems to be that they would need to pay an additional amount for still valuable works after decades of benefit – even though that’s precisely the bargain they struck.
2.5 Other Commonwealth Statutory Reversion Rights
So far this chapter has focused exclusively on the reversion rights that originated in the UK. As we noted above, the Imperial right was widely exported throughout the Commonwealth. In addition to that, however, some nations have enacted additional rights. Language and resource restrictions prevent us from any comprehensive analysis, but we have summarised some of these provisions in Table 2.1.Footnote 117
Table 2.1 Copyright reversion provisions in Commonwealth countries that are different from section 5(2) of the 1911 Imperial Copyright Act
They include rights to revert where publishers are acquired, where they fail to publish a work within a specific time, or where a work goes out of print. Additionally, Malawi, Mauritius, Nauru, Tanzania and Zanzibar have a general ‘use it or lose it right’ entitling creators to reclaim their copyrights for lack of exploitation. Use-it-or-lose-it rights are more commonly found in European copyright laws, and the EU’s 2019 Digital Single Market Directive mandated that all Member States provide mechanisms for authors and performers to reclaim their copyrights in cases of a ‘lack of exploitation’.Footnote 118 As we will discuss in Chapter 4, that mandate has been largely implemented in a way that suggests rights can only be reclaimed where there is no exploitation at all.Footnote 119 The Malawian and Tanzanian laws are similarly narrow, but the others are scoped more broadly to entitle creators to take back inadequately exploited rights. Inquiry into the way those laws actually work in practice is beyond the scope of this book, but it’s an interesting counterpoint to the restrictiveness of the EU’s approach.
Nauru, Mauritius and Tanzania also prevent authors from transferring their use-it-or-lose-it rights via contract, which may reflect lessons learned from the failures we described at the beginning of this chapter. This is again a stricter approach than that taken by the EU, which as we will see did not require Member States to prohibit contracting out of its own use-it-or-lose-it right.Footnote 120
2.6 Recent Developments
In the last few years, there are signs that the laissez-faire approach is losing currency even in Commonwealth strongholds, with the strongest pushes for reversion rights reform coming from Canada, South Africa and the UK.
2.6.1 Canada
Reversion rights became a hot topic in Canada in 2017 when singer-songwriter Bryan Adams and law professor Daniel Gervais argued before a Committee of the Canadian House of Commons that rights ought to revert 25 years after transfer rather than 25 years after the author’s death.Footnote 121 One parliamentary standing committee subsequently recommended an amendment to that effect, while another proposed the introduction of an inalienable 25-year termination right bounded by certain additional restrictions.Footnote 122
As we go to press, however, more than half a decade later, there are few signs that a more meaningful reversion right will actually pass into Canadian law. There was an ideal opportunity to do so in 2022, when Canada extended its copyright terms from life plus 50 years to life plus 70 years as mandated by the Canada-US-Mexico trade agreement, but it was ultimately passed without the recommended reversion reforms.Footnote 123
However, the Canadian equivalent of the Imperial right – as unsatisfactory as it is – remains in force, and thanks to that term extension, heirs are now entitled to the final 45 years (rather than 25 years) of copyright. The publicity triggered by the reform effort may have raised awareness among executors and heirs about the potential value of their rights, and that this long-ignored feature may finally have a greater impact.
2.6.2 South Africa
South Africa has also been considering reversion reform. But the proposal for such reform goes even further than those mooted in Canada, potentially giving authors one of the world’s most powerful reversion rights: an automatic 25-year limit on all copyright assignments for literary and musical works.Footnote 124
The Copyright Review Commission initially proposed this limit in 2011 to deal with musical artists not getting royalties because they had made poor initial assignments.Footnote 125 The initial bill, however, was considerably wider: it covered all copyright assignments.
This proposal garnered opposition, including from Owen Dean, despite his success with the Imperial provision in the Mbube case: ‘There is no logic to this provision and it is completely arbitrary.’Footnote 126 Dean was concerned that non-authors would benefit because all assignments were limited, not just the ones authors made: so if the author assigned the rights to the publisher, who then assigned it to another publisher, the first publisher would benefit.Footnote 127 He also interpreted it as not allowing assignments shorter than 25 years, which was ‘preposterous’.Footnote 128
Other stakeholders continued to oppose reversion through Parliamentary committee discussions and consultations,Footnote 129 even though its scope was subsequently reduced to literary and musical works.Footnote 130 Lawmakers persisted with reversion, though, and it looked like it would pass in 2019 when Parliament sent the Bill to President Cyril Ramaphosa for assent. However, the President refused, citing concerns over the Bill’s constitutionality.Footnote 131
Rightsholders were particularly vocal against reversion when the Bill came back to Parliament.Footnote 132 They argued that creators would be worse off by not being able to bargain away more than 25 years of rights,Footnote 133 that reversion unduly imposed on the parties’ contractual freedom,Footnote 134 and that works would be lost to the public if joint authors/performers held up attempts to re-license works.Footnote 135 The Publishers’ Association of South Africa expressed concern that other publishers or platforms could profit from all the work a first publisher had done in the initial 25-year period: ‘Amazon and others would reap where they have never sown, cherry picking and leaving the rest stranded like a ship in the Namib.’Footnote 136
Parliament was undeterred, however, and passed the Bill without amending the reversion provision.Footnote 137 As we go to press, however, the Bill’s future is uncertain: the President referred it to the Constitutional Court in October 2024 over constitutional concerns, though none in relation to the reversion provision.Footnote 138
We find most of these arguments unpersuasive for reasons documented elsewhere in the book. However, we are concerned that the automatic operation of this provision may worsen the problem of orphan works. As we explain in Chapter 6, making reversion rights automatic can be an effective way of helping creators actually enforce them. But what if rights revert to creators or heirs who have no interest in them, or perhaps don’t even realise they control them? To avoid such undesirable outcomes, we recommend automatic mechanisms be combined with appropriate safeguards to ensure they promote rather than hinder access.Footnote 139 Unfortunately, the South African law contains no such scaffolding.
It’s also problematic in other ways. For example, it doesn’t expressly bar publishers from signing multiple agreements for different 25-year blocks when initially negotiating the copyright grant with an author or composer, increasing the risk of its author-protective intent being undermined.Footnote 140 This kind of subversion is a real risk: as we explain in Chapter 4, publishers in Spain have attempted to contract around an analogous 15-year limit on publishing contracts by making them automatically renewable in 15-year blocks.Footnote 141
Further, the provision doesn’t address vital issues like what happens with joint authors and collective works, or commissioned works/works made in the course of employment. And Dean’s initial criticism remains valid, too: it’s unclear to us why it should apply to assignments made by those other than the author.
As we argue in Chapter 6, such issues must be appropriately dealt with for reversion rights to fully achieve their potential. We anticipate significant problems will emerge in the implementation of the forthcoming South African reversionary system precisely because it does not adequately address them.
2.6.3 The UK
Finally, the UK has also exhibited considerable renewed interest in reversion rights over the last few years.
2.6.3.1 The ‘Terms of Trade’ Triumph
That new interest is contextualised by the success of the UK’s independent film industry since 2004, when public service broadcasters like the BBC and Channel 4 (‘PSBs’) were required to implement new codes of conduct regulating the terms on which they commissioned independent productions.Footnote 142 These ‘Terms of Trade’ must cover matters such as licence duration, exclusivity of rights, and transparency around payment, and be approved by the regulator, OFCOM.Footnote 143
The biggest effect of the change was to give independent film and television producers greater control over secondary rights to their content. Before this, independent film and television producers had little power to negotiate with PSBs, which are a powerful force in the UK market, and as a result were often obliged to license all or virtually all their rights in order to get their projects funded.Footnote 144 However, just as we’ve seen in other culture markets, that didn’t mean the broadcasters actually actively exploited those rights, by (for example) licensing them into other territories: ‘the PSBs had little or no interest in actively or even passively administered much of the content they controlled’.Footnote 145 This frustrated the production companies who had made the works and wanted them to be widely accessible, but because they’d been obliged to hand over the foreign rights, they were unable to exploit them themselves.Footnote 146
Under the new regime, however, the producers retain control over those secondary rights. While they must share any proceeds with the commissioning broadcaster, the creators themselves get to decide where and how to monetise their projects overseas.Footnote 147 The change ‘had a radical, sector-altering impact on television production in the UK’.Footnote 148 From 2004 to 2008, international income from UK TV rights grew an average of 22 per cent per year, and then continued to grow at around 7 per cent, while overall TV revenues increased from £1.5 billion in 2004 to more than £2.6 billion in just 13 years.Footnote 149
Terms of Trade are limits on what creators can be obliged to give away, rather than reversion rights per se, but they achieve the same end: they help creators share fairly in the proceeds of their work by enabling them to negotiate additional deals once they have a better idea of what the work is worth, and help promote access to knowledge and culture by placing the exploitation rights in the hands of those most motivated to exploit them.
France now similarly regulates terms of trade for its film industry by limiting licence terms. Previously, streaming companies like Netflix insisted on buying out all rights on the shows it financed, but the new restrictions limit exclusive rights to a maximum of just three years.Footnote 150 Recognising the power of such interventions, creator organisations are advocating for them elsewhere, too.Footnote 151
2.6.3.2 Recognising Reversion’s Potential
British creator groups, most notably the Society of Authors, were among those pushing hardest for the inclusion of ‘use-it-or-lose-it’ rights in the European Digital Single Market Directive. Book authors often have reversion rights included in their publishing contracts, but that approach is far from satisfactory (as we demonstrate in Chapter 5), and they have long advocated for improved protections.Footnote 152 Although the campaign to incorporate these rights into the Directive succeeded, authors did not enjoy the fruits of that work in the UK, with Brexit torpedoing domestic implementation.Footnote 153
Reversion rights stayed on the agenda, however, thanks to a UK parliamentary committee inquiry into the economics of music streaming. As we explained in Chapter 1, it found that the major record labels had become massively more profitable in the streaming era, but that those rewards were not being shared equitably with the recording artists and songwriters who actually make the music.Footnote 154
In response, it recommended that creators be entitled to reclaim their rights 20 years after transfer, being after the point labels commonly write off bad debt, but likely still within the creator’s working life.Footnote 155 This, in the Committee’s view, ‘would create a more dynamic market for rights and allow successful artists to go to the market to negotiate better terms for their rights’.Footnote 156 It also recommended adopting other creator-favouring interventions such as rights to equitable remuneration and contract adjustments to bring the UK in line with Europe.Footnote 157
We revisit this proposal in our upcoming best practice analysis (Chapter 6). As we go to press, however, it remains unclear whether the inquiry’s recommendation will translate to legislative reform. Giving musicians the right to reclaim rights after 20 years is the kind of intervention we think would make a real difference to their bargaining power, resulting in more profits going to artists and less to their labels. This would disproportionately affect the majors who control the bulk of catalogue, and whose record profit margins are being fattened by the contracts of heritage artists that pay much lower royalties than the going rate today. Given the power of those labels, such an initiative would take real political courage. It may be that the UK’s highly effective Terms of Trade reform was only politically possible because it was limited to public broadcasters. Will British lawmakers have the appetite to take on the Big Content and Big Tech giants who would lose out if creators had meaningful rights to negotiate fresh deals in other contexts?
2.7 Conclusion
Neither of the statutory reversion rights to have originated from Britain was designed in a way that would have allowed them to meaningfully benefit creators. The Statute of Anne’s author-protective intent was defeated by allowing publishers to extract the reversion right up front. The Imperial right was also designed to fail, by kicking in far too late (at a point most works had long ended their commercial lives) and by vesting in estates long after most of them had been wound up. Despite its deficiencies, the Mbube and Redwood cases still demonstrate the importance of reversion rights in correcting the injustices that can result from current contracting practice, and hint at the potential upside that could come from designing them in ways designed to further copyright’s access and reward aims.
The use-it-or-lose-it model observed in some Commonwealth nations, in Africa and the Pacific presents a different, and intriguing, model which we examine more fully in Chapter 4 and our recommendations in Chapter 6. But the most effective intervention discussed in this chapter has undoubtedly been the UK’s Terms of Trade reform that limited what creators can be obliged to give away. While not strictly a reversion right, it provides additional real-world evidence of the potential upside that could follow from introducing author-protective rights aimed at re-balancing bargaining power between creators and investors. Recent law reform developments in Canada, South Africa and the UK suggest that the concept of reversion is very much alive in lawmakers’ minds as a way of addressing those imbalances.
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