Duration of copyright. Copyright protection before and after the death of the author
Duration of copyright. Copyright protection before and after the death of the author
Author: Dr. Fodor Klaudia | 21st February 2020

Duration of copyright. Copyright protection before and after the death of the author

In my previous articles I described the concept of copyright and what are the examples of works protected and not protected by copyright. Then I continued with the explanation of authorship and how to prove it in accordance with the Hungarian copyright law. In today’s article I will write about how to calculate the duration of copyright protection, especially if it a translated work or is of foreign origin.

Copyright – similarly to most of the good things – does not last forever. The length of the protection is not carved in stone: it has changed over time reflecting the shaping attitude toward the concept of copyright. It is subject to a political decision balanced between the interest of the society to use the works as soon as possible and the interest of the right holders to maximize income from the creations.

In Hungary, duration of copyright can be defined by its starting time and the end as follows:

Copyright (the bundle of rights that it includes) starts automatically as soon as the creation is done.
​It lasts during the lifetime of the author, plus 70 years commencing on the 1st January after the author’s death.​

If the copyright work was composed by more authors, then the calculation starts after the death of the author who died later. If the author is unknown, then the protection starts at the first publication of the work.

Ancient works of art. Protection expired a long time ago.
Photo: Klaudia Fodor © (Cyprus, 2019)

Consequently, the copyright…
Once copyright protection expires, the work, that used to be protected, becomes public good.
This means, that after this time everyone is entitled to use the work without asking for any permission. There is one restriction in Hungary: users are expected to respect the author’s memory and indicate the author’s name on the work.
Does the rule of the 70 years apply in other countries as well?
Within the territory of the European Union the rough answer is: yes. Outside of the EU: this is more complicated.

Copyright law is “territorial” and national in scope. Therefore, national copyright laws stipulate the duration of copyright. Within the European Union there has been significant harmonization in order to avoid differences between the member states.

Outside of the EU the Berne Convention ensures that all countries apply at least a basic copyright protection. “More protection” is more than welcome. One of the treaty’s principles is the “national treatment”. This means that works originating in one of the contracting states (that is, works the author of which is a national of such a state or works first published in such a state) must be given the same protection in each of the other contracting states as the latter grants to the works of its own nationals.

This is a nondiscrimination rule: a “foreign author’s” works must enjoy the same protection like the works of their own nationals’.

Most of the countries of the world are members of the Berne Convention. However, a deeper look is needed if countries like Afghanistan, Iran or Ethiopia, which are non-contracting states, are involved.

Let’s go with this simplified summary:

You can rely on the rule of the 70 years protection within the territory of the European Union when using a work of some “European” origin.​
Things get more complicated with the calculation, if you want to use a work outside of the EU, or even outside of the scope of the Berne Convention. In these cases domestic copyright laws plus international treaties will establish the scope of the protection.​

At the tomb of Oscar Wilde. Grand graves for grand persons.
Photo: Klaudia Fodor © (Paris, 2005)

Right now in 2020 if you want to use a Hungarian author’s work in Hungary, who died in 1950 then you must obtain permission for it, but if the author died in 1949 or earlier, then you are free to use it.
In the recent years the repertoires of the authors who died in the second world war have all become public good.
Here is a list of Hungarian writers and poets who passed away in the 1940’s:
Every year on the 1st January new repertoires will become common good.
Here is a list of some “upcoming” Hungarian authors:
Putting works into another language is an intellectual activity that can result in copyright works. If the translation is of individual-original nature, then – and only then – this translation is also protected by copyright.
A translated work is covered by two author’s copyright: by its original author’s and its translator’s.

They – usually – die in different years, thus, the death of the later will be the basis of the calculation, as I mentioned above.

Let me tell you an example.

Shakespeare died in 1616, so his works in original English have long been common domain.

Shakespeare’s works were translated into Hungarian by several Hungarian writers throughout the centuries. Some of them are dead long time ago (Arany János, Babits Mihály, Radnóti Miklós), so these translations are up for grabs for free.

A grandiose Hungarian translator, Arany János – writer and poet himself – translated Shakespeare and other masterpieces from German, English, Latin and Greek in the 19th century

There are however more recent (Szabó Lőrinc), or even brand new (Varró Dániel) translations of the English playwright. If you want to use these versions, you must ask for permission from the translators (or the heirs), and only from them.
Shakespeare’s copyright will not be renewed through the translations of his works.
The same applies, if a work of common domain is published: publication does note revoke any substantive entitlement on the work for the publisher either.
Who “receives” copyright after the author died?
The author’s lawful heirs will be the rightsholders after the author has passed away.

Copyright can be inherited like any other goods we possess (real estate, car, money etc.). We can even write a will about to whom we want to allocate these rights.

Heirs will have the same rights as the author had (they can grant permissions, collect royalties, prohibit uses etc.)

Heirs need the right certificate to prove their ownership.
In Hungary this certificate will be issued by the notary public at the end of the inheritance procedure. Therefore, during the inheritance it is important to notify the notary public about the fact that there is copyright in the legacy.
To wrap it up:

contact me, I can help you to navigate through the maze.

The upcoming article will be about the bundle of rights the author possesses over his/her work.

My mission: I realized that there are many misconceptions about copyright that I call “copyright myths”. Therefore, I have started a copyright awareness raising campaign on social media – the English blog series is one part of it. Follow me on Facebook and Instagram for the Hungarian contents (#kfodorlegal). Let’s kill copyright myths once and for all. #KillingCopyrightMyths

Dr. Klaudia Franciska Fodor is an attorney-at-law in Budapest, specialized in copyright, real estate and company law. She used to work for the Hungarian copyright organization, Society Artisjus. Don’t hesitate to contact her in civil law related legal matters in Hungary.

Billboard picture in the cemetery: Klaudia Fodor © (Milan, 2019)