How copyright was extended in the USSR

Many people know the epic with the extension of copyright in the United States – the so-called “Mickey Mouse Protection Act” Such an extension is usually associated with the interests of large rights holders, for example, the Disney studio. However, in the 20th century, it was generally customary to renew copyrights – and this was done everywhere, including in the USSR. What is especially interesting is that in the USSR and new Russia, copyright law changed more often and more seriously than anywhere else: from zero protection, it has been in force for 70+ years. And, what is most curious, we have repeatedly had works returned from the public domain and from state property, as a result, many works have been both under protection and in the public domain several times.

Now I’ll tell you in more detail, but first, why I was interested in the topic of Soviet works in the first place. At the end of the tenth years, I wrote and published a book about the main building (high-rise) of Moscow State University. I wanted to use a lot of historical photographs and documents in it, but in the process it turned out that most of these materials are under copyright – and the copyright has nothing to do with the fact that 1) the materials are in an archive that takes money for their publication 2) the materials were created commissioned by government organizations (newspapers, studios, etc.) Then it became interesting why this happens: I pay money to the archive, I pay to a conventional photo bank, and the author comes and sues me?

Now there will be a detailed answer.

Revolutionary excesses and cancellation of copyright

Before the revolution, Russia had an extremely progressive Copyright Law of 1911. It established the period of copyright protection for literary, musical and artistic works during the life of the author and 50 years after his death (spoiler: Russia returned to this period only 80 years later). The authors' work was regulated in sufficient detail; there were few violations. Agreements have been concluded with leading countries to resolve conflict cases.

1911: copyright applies during the author's life + 50 years

After the revolution, the decree was canceled (along with the entire Code of Laws of the Russian Empire). The country experimented with “revolutionary expediency” and adopted a number of decrees that practically abolished copyrights. The names speak for themselves: the decrees “On the abolition of inheritance” (1918), “On the recognition of scientific, literary, musical and artistic works as state property” (1918), “On the abolition of the right of private ownership of the archives of deceased Russian writers…”, “On publication of works by Russian writers,” etc. In particular, they prohibited the inheritance of copyright; the works of leading writers were forcibly transferred into the public domain along with the nationalization of printing houses. If you are interested, this is well written in the article by Ivan Pankeyev “Russian copyright of the 20th century in regulations“

1918: Copyright It does not work

Later, the most odious decrees were rolled back. In 1925, the term of copyright was determined to be 25 years from the date of publication of the work, with no more than 15 years in case of death of the author. However, many works were protected less: photographs – 5 years, film scripts, films, periodicals – 10.

1925: copyright applies 5–25 years from date of publication

In 1928, the period of protection was extended: “during the life of the author and 15 years after his death.” True, the shortened protection periods for some works will remain until the end of the 1960s: the same photographs were protected from 5 to 15 years, depending on which republic of the USSR they were taken.

Due to the 1928 law, many works that had fallen into the public domain returned to copyright protection. This was the first such return and, perhaps, the most painless return of all. It will be tougher next.

1925: copyright applies during the author's life + 15 years

The next point is 1973. The USSR accedes to the Universal Copyright Convention, and all copyrights are brought to a single denominator: throughout the author's life and 25 years after his death. The shortened terms of protection have finally been abolished: now all works are protected by default for 25 years. Works that have already entered the public domain under the old rules did not return to protection: for example, a photograph taken in 1960 in the Azerbaijan SSR remained in the public domain, even if its author was alive.

1973: copyright applies during the author's life + 25 years

Post-Soviet laws and privatization of Soviet works

The next extension is the early 1990s. In 1991, the Soviet Fundamentals of Civil Legislation were adopted, which established a deadline for new works of 50 years after the author's death (here this period finally became equal to the pre-revolutionary one). And in 1991, the Russian Federation Law “On Copyright …” was adopted, which extended a new term for all previously created works.

Imagine: the author died in 1960, his work, at best, is protected until 1985. But in 1993 the period was extended, and the work until 2010 again fell under copyright protection. Profit!

Moreover: let's say the author died in 1955. In this case, his work went into the public domain in 1970 and until 1993 it could be used by anyone. Until 2005, but it’s not over yet…

Disputes have flared up among lawyers: it is clear that returning such a heap of works from the public domain is a risky business. A lot of works were published, filmed, derivative works were created, etc. But the Soviet authors and their heirs had already breathed in the air of freedom and were not going to retreat: they wrote open letters, put pressure on deputies, and eventually achieved the desired formulation. In 2006, the Supreme Court put an end to the dispute, unequivocally confirming that the work had returned from the public domain.

1990/1993: copyright applies during the author's life + 50 years

In 2004, the period was increased again – to 70 years, and in 2008 (with the adoption of Part 4 of the Civil Code) this period was again extended to all works. As a result, many works could return from the public domain twice: in the 90s and in the 2000s. This is the last extension of copyright terms and the last mass return of works from the public domain. Since 2009, our country has had a single term of copyright protection – during the author's life and 70 years after his death. This period is prescribed in the Berne Convention and is valid in most countries of the world.

2004/2008: copyright applies during the author's life + 70 years

So, how long did copyright last in the USSR?

I assembled a graph in Excel and colored it in Photoshop:

If you prefer to study pictures in landscape format…

Why is reversion from the public domain bad?

The restoration of copyright protection occurred twice in a short period of time – in 1993 and 2008. Because of this, some works entered the public domain two or even three times and were restored from it.

For example, consider a photograph created and published in 1935, whose author died in 1949. It first entered the public domain on January 1, 1940, and can be freely used until August 3, 1993. From August 3, 1993 to On December 31, 1999, the copyright for the photograph resumed. From January 1, 2000 to December 31, 2007, the photograph was in the public domain for the second time (we will omit the details). On January 1, 2008, copyright was restored again and finally expired on December 31, 2019.

Thus, in the 85 years since the photograph was created, it has been protected for 24 years and has been in the public domain for 61 years. All this time, the author (and his heirs) most likely were not interested in the work; it was published without indicating the author, etc. Such works are called “orphan works”: the identity of their authors cannot be determined. And in the 1990s, a lot of such works returned to copyright.

For example, my case: photographs in Soviet magazines. In many magazines (for example, “Architecture of the USSR”) photographs were not even signed, and staff photographers were listed with a comma at the end. That is, in the magazine itself there is no information about who created which photograph. But even “orphan works” cannot be used without the permission of the copyright holder. And if I publish such a photo in a book, the author (or, rather, his heir) can come to me at any time and quite legally sue me for a lot of money.

It turns out that a single period of 70 years is, on the one hand, convenient (you don’t need to know the date of creation of the work, only the date of death of the author). But returning works from the public domain increases uncertainty by creating a mass of “orphan works.”

You may ask: but all these photographs were published in state magazines, the authors received a fee for them – isn’t this enough for the work to go into the public domain? Can’t I publish a photograph from the Smena magazine or a cartoon from Krokodil, since their authors have already received compensation from the Soviet budget?

The fact is that in Soviet times there was a different regime for official works (that is, works created by order of the employer as part of official duties). Soviet law reserved the rights to such works to the author. Therefore, the Strugatskys, for example, could publish the story in magazines and collections, and not ask permission from publishing houses. In the USSR this was justified: anyway, the author’s possibilities were limited, all publishing houses and magazines were state-owned. For works legally published abroad, the state took almost all of the royalties for itself (and for illegal publications one could get penalized).

However, in practice, most authors did not use their rights. For example, a newspaper photographer gave negatives to the editor (or developed them himself and gave away the developed photos) and forgot about them. Then the editors printed the photographs and transferred the negatives to the archives. In the 1990s, many publishing houses and media ceased to exist, and their collections were dispersed into museums and foundations. However, this is where the rights to the photographs arose with the photographers and their heirs.

It turns out that with the return of works from the public domain, the heirs of correspondents, photographers, newsreels, etc. can claim copyrights that, in essence, were never controlled by their parents. These rights were often terminated during the author’s lifetime, and then (with the return from the public domain) arose to the heirs.

Of course, when works are returned from the public domain back under copyright protection, the question arises of what to do with the works created from them during that time. For example, a photograph was included in a book, a literary work was translated or filmed, an illustration was registered as a trademark, etc. What is the fate of such derived objects?

A striking example is the controversy surrounding the film “The Master and Margarita,” directed by Yuri Kara based on the novel by M.A. Bulgakov at the turn of the 1990s. At the time of filming, the novel had already been in the public domain for a long time; however, with the release of the Copyright Law of 1993, The Master and Margarita began to be protected again, and the writer’s heirs started a dispute with the producers. As a result, the film was released only in 2011.

Results

Over the last century, the duration of copyright in our country was first reset to zero, and then gradually increased: to 15, 25, 50 and, finally, 70 years from the death of the author. At the same time, legislation became more complex and inconsistencies disappeared. But – a big pain – at the same time, a lot of works were returned from the public domain at least three times. This was beneficial to the authors' heirs, but created great uncertainty.

Restoring copyright for works that have fallen into the public domain entails a number of problems. This cannot be done without compelling reasons and detailed regulation of emerging difficulties. However, this is exactly what we did – frivolously and irresponsibly. Now we have to create extra crutches.

Of course, there are fewer and fewer problems with Soviet works as they gradually enter the public domain. But a final settlement is still far away. So be careful if you want to use Soviet works in your works.