The Duration of Copyright in works by Delius post 31 December 2004

This document gives the copyright situation as the Delius Trust understands it as at April 2005. However, there are still a number of questions to be answered. It reviews the copyright position of those Delius works that will remain in copyright somewhere after December 2004, including arrangements of Delius works and lists on a separate spreadsheet those works that will be protected beyond December 2004, with the appropriate termination dates.

Categories

1. Works published during the composer’s lifetime in the EC.

These in general received protection for life +70 years, and with certain exceptions went out of copyright throughout the EC on 31 December 2004.

There are war years extensions in France and Italy. It France the extension is:

1. 14 years + 274 days for works published before 31 December 1920, meaning that such works will be protected until 1 October 2018.
2. 8 years + 122 days for works published between 1 January 1921 and 1 January 1948, meaning that such works will be protected until 1 May 2012.

In Italy there is a six-year extension to 31 December 2010.
In Spain it seems that there is an 80-year term, as confirmed by the Boosey & Hawkes agent.

In the case of joint works, the interests of composer and collaborator both go on until the last to die falls into the public domain. The 1972 Koanga revised text by Page and Craig comes into this category. The text rights were assigned to the Trust and are exercised by Boosey & Hawkes under licence. The Trust will be able to continue to levy grand rights on Koanga stage productions, up to 70 years after the death of the last of the two writers.

Urtext Editions. These have limited protection in Italy and Germany and are protected in Italy. There is unlikely to be any benefit to the Trust. Neither the Trust nor the publishers claim copyright in the Collected Edition as such. Certain works within it may still be protected.

Arrangements. Generally, an arranger of copyright music has no exercisable rights during the term of the composer’s underlying copyright. In most cases the publisher will have taken the copyright in such an arrangement, meaning that after the copyright in the original work has expired, the arranger and the publisher share the royalties from the use of the copyright in the arrangement.

Eric Fenby’s arrangements of Delius works, as listed below, will be copyright in the EC as Fenby works from 1 January 2005 until 31 December 2067. The works are: –

La Calinda, arr. for orchestra, flute& strings and flute & piano
Late Swallows arr. for string orchestra.
Sonata for strings, arr. from string quartet.
The Magic Fountain v/s.
A Mass of Life, with reduced orchestration.
Air & Dance arr. for flute & strings and flute & piano.
Five little piano pieces arr. for small orchestra.
Intermezzi from ‘Fennimore & Gerda’ arranged for small orchestra, and for ob/string quartet.
Two Aquarelles. (Two parts songs arr. for strings).
Caprice & Elegy arr. cello & piano.

Sir Thomas Beecham is credited as an arranger of the following works:

The Walk to the Paradise Garden, with reduced orchestration
Introduction & Serenade from ‘Hassan’ arranged for normal orchestra
Twilight Fancies, orchestration.
Irmelin Concert Suite from Act 2 
Irmelin Opera
Summer Evening
The Violet (orch)
Venevil (orch)
Marche Caprice

As with the Fenby arrangements above, these will be copyright as Beecham works in the EC from January 2005 to 31 December 2031, 70 years after Beecham’s death. For the US situation see below.

In the case of arrangements by others, the same rule will apply.

2. Works Posthumously Published in the UK.

The effect of the provisions in the copyright acts relating to posthumous publication is to ensure a minimum period of protection after publication or first performance.

Works by Delius received protection for life + 50 Years under the 1911, 1956 and 1988 Copyright Acts, increased throughout the EC to life + 70 years in 1996, as a result of the decision in the ‘Phil Collins’ case in the European Court of Justice, (ref C-92/92 and C-326/92).

But works by Delius first published or first performed posthumously between 1934 and 1 August 1989, (the commencement date of the 1989 Copyright Act), were further protected for 50 years from the first of publication or first performance, extending the period of protection.

eg: ‘Sleigh Ride’, first performed in 1946, received additional protection to December 1996. At that point, but for the EC Directive it would have gone out.

Under the 1988 Copyright Act, in an attempt by the government to reduce the amount of protection given to posthumously exploited works, those unpublished or unperformed as at 1 August 1989 received 50 years from that date, whether performed, published or not, ie. until 31 December 2039. It therefore has behoved the Trust, as indeed Robert Threlfall has done, to speed the publication of the remaining unpublished works.

eg: The ‘Negro Songs’, first published in 2004 will be protected until December 2039.

The situation has been further complicated by the revival of the Delius copyrights under the EC Copyright Directive, and the move to life + 70 years.

The 1996 EC Copyright Directive, and the UK Statutory Instrument dealing with the extension to 70 years pma, which revived Delius copyrights that had lapsed, did not give additional years to posthumously published UK works, but the effect of the Phil Collins case was to give all works by EU nationals, whether published or not, a period of protection of life +70 years.

To calculate the period of UK protection:

A Delius work first posthumously exploited between 1 January 1935 and 31 December 1954 would, under the EC Directive, be protected until 31 December 2004, a longer period than that under the posthumous provisions.

A Delius work first posthumously exploited between 31 December 1954 and 1 August 1989 would receive 50-years protection, thus prolonging the copyright period beyond 2004

A Delius work exploited after 1 August 1989 would receive the balance of 50 years up to 31 December 2039.

Most countries ensure a minimum period of protection from first exploitation, although the provision can be rather restricted. Germany has a 10-year minimum, so the Negro Songs, published in 2004 and protected in the UK until 31 December 2039, are protected in Germany only until 31 December 2014. The US situation is covered separately, but it should be noted that only publication/registration in the US starts the copyright period running and that under the GATT/TRIPS agreement non-registration does not invalidate a copyright.

3. Works published in the USA.

The term of copyright is complicated by the US decision in 1976 to move from 2 periods of 28 years from registration of first publication to a pma period. Before the 1978 Copyright Act, copyright in the US ran from registration of first publication, not first performance. The move from the old system to protection lasting until 70 years pma necessitated a number of extensions to works copyrighted under the old rules. The situation can be summarized as follows:

Delius works published during his lifetime, not later than 31 December 1905 received 28+28 = 56 years from registration.

Works published during his lifetime, but after 1 January 1906 and before 31 December 1922 received 28+28 years plus an additional 19-year extension, making 75 years from the date of registration.

So, In a Summer Garden, published and registered in 1911, was protected until 31 December 1986.

Delius works published during the composer’s lifetime between 1 January 1922 and 1 January 1978, when the 1978 US Copyright Act took effect, received a further extension of 20 years under the 1998 so-called Sonny Bono copyright legislation, taking their total period of protection to 95 years from the date of registration.

So, Songs of Farewell, published and registered in 1931, will be protected as a Delius work in the US until 31 December 2026.

Works written during the lifetime of a composer on or after 1 January 1978 are protected until 70 years after the composer’s death.

We believe that works posthumously published or registered in the USA between 1 January 1922 and 1 January 1978 receive +95 years.

Works published in the USA after 1 January 1978 receive the balance of 50 years from the composer’s death and are shown as 1978+50 years on the spreadsheet.

The period of protection of an arrangement such as the Fenby/Beecham arrangements would be 95 years from registration of the arrangement.

4. The Nine Fenby Works

There are nine works that Fenby, who died in 1997, helped Delius to complete. The Trust believes that Fenby’s unique contribution to the completion of these works entitles his estate to assert his copyright, now that the copyrights in the underlying works has expired. The works are published by Boosey and Hawkes:

Songs of Farewell
Idyll
Cynara
A Late lark
A Song of Summer
Irmelin Prelude
Caprice & Elegy
Sonata No. 3 for violin & piano
Fantastic Dance

5. Delius Letters

The text of letters by Frederick or Jelka Delius may be quoted without seeking permission from the Trust.

The Spreadsheet that accompanies this report gives details work by work and can be sorted in various ways to aid identification. Please note this spreadsheet requires Microsoft Excel. Download spreadsheet.

The column headed Work is that of the complete piece, ie. Florida.
The column headed Title shows the title of movements within a work. ie By the River.
Where the 50 years given to any posthumous exploitation comes within the life+70 years granted by the EC Directive, the EC copyright term is shown as 1934-2005.

RWM/RT
18 April 2005