Orwell’s Works Have Now Entered The Public Domain Which Presents Both Opportunities And Challenges

“All Animals are Equal, But Some Animals Are More Equal Than Others” – the famous words of Eric Arthur Blair, better  known as George Orwell, English novelist, essayist and critic.

Published in 1945, Orwell’s book Animal Farm is his allegorical novel based on the events of the Russian Revolution in 1917 and the rise to power of Joseph Stalin. A group of farm animals rebel against their human farmer, hoping to create a society where the animals can be free, equal and happy with less work, better education and more food. 

George Orwell died of tuberculosis in London, on 21 January 1950, aged just 46. This month marks the 71st anniversary of Orwell’s death.

This anniversary is particularly noteworthy as it also marks the entry of Orwell’s works (published pre- 1950) into the public domain. Prior to this month, Orwell’s cannon of work have been protected by copyright.

The UK Copyright Designs and Patents Act 1988 provides that original literary, musical, dramatic and artistic works are generally protected by copyright from the date of creation until 70 years following the calendar year in which the author dies. Copyright confers on the owner of a work the right to prevent third parties from (amongst other things) reproducing that work. This means that unless permission (or licence) is granted to use the work by the owner (or a licencee) a third party may not use the work or a substantial part of it. 

Upon the expiry of copyright protection the work enters the public domain and, subject to any other rights relating to the work, is free for anyone to reproduce.

The public domain consists of those works which are not protected by copyright, usually (but not exclusively) because this protection has expired. Works in the public domain can be used, modified, changed or adapted without the user having to obtain permission from the copyright owner and without having to pay for a licence to use the work. Using material in the public domain also provides comfort to users that they are not at risk of copyright infringement.

Public domain material can be a treasure trove, as it potentially allows businesses and professionals in the creative industries to build on and develop existing material freely in order to create new content across various media from TV, to film, games and music to theatre. This content will generally attract new copyright protection, and consequently will enable the creator to effectively commercialise this new work.

Consequently, some businesses may have been waiting for this month to take advantage of the expiry of the copyright in Orwell’s works.

However, whilst the fact that Orwell’s works have entered the public domain presents opportunities, the use of his works (and other public domain material) is not entirely as straightforward.

Nineteen Eighty Four, Orwell’s iconic, dystopian social science fiction novel about the consequences of mass surveillance and totalitarianism, also enters the public domain this month. 

However, later editions, including Professor Peter Davison’s edited “Facsimile Edition of Nineteen Eighty-Four” were created and published after Orwell’s death. 

Professor Davison notes in the introduction to the Facsimile edition, the “facsimile in particular reproduces all that is known to have survived of the preliminary drafts of Nineteen Eighty-Four, that is about 44% of the published text of the novel.” Elements of Professor Davison’s edition will therefore attract its own copyright protection for the life of the author plus 70 years and consequently, Davison’s work remains protected by copyright today. 

Those in the creative industries seeking to use Orwell’s works will need to take care when determining what elements are in the public domain and what remain protected. Any use of the whole or a substantial part of copyright material without the relevant permissions from the copyright owner will constitute copyright infringement and entitle the owner (or licencee) to legal remedies including damages for losses sustained as a result of such infringement.

Another issue to be aware of relates to territory and differences in copyright regimes in different countries. Whilst copyright protection of Orwell’s original works may have expired in the UK, this may not be the case for Orwell’s works published in other jurisdictions. 

Due to American copyright law and extensions of such laws certain of Orwell’s works may be protected in the US for 95 years from the date of first publication. This means that businesses and individuals cannot yet freely access or commercialise Orwell’s works in the USA as they remain protected by copyright. UK based companies or individuals may also be curtailed in publishing any new works; developing computer games or creating TV programmes or musical works based on Orwell’s novels (or elements of them), for commercialisation in the US unless they are able to procure the requisite licence from the rights owner(s).

Users of works entering the public domain must also be aware of other intellectual property rights relating to the works. As we know, the concept of Big Brother, a synonym for the abuse of power by government, specifically in relation to mass surveillance, is taken from Orwell’s novel Nineteen Eighty Four. However, use of the term BIG BROTHER is subject to the registered rights of production company Endemol Shine which owns various intellectual property in relation to its TV Show and format Big Brother and any unauthorised use of the words BIG BROTHER could amount to (amongst other things) trade mark infringement.

Whilst copyright protection of Orwell’s works has generally expired in the UK and the works have entered the public domain care must be taken when embarking on a project utilising these works in whole or in part.

The opportunity for businesses and creative professionals to produce content from public domain material for commercialisation across various media is significant. It is also an area in which the media and entertainment team at Irwin Mitchell provide specialist legal support to businesses. 

By Laura Harper, Partner and Charlotte Peel, Solicitor.

For further information regarding any of the themes in this article please contact Laura Harper.