News & Insights

In exciting news for Whovians around the globe, two additional “lost” Doctor Who episodes are believed to have been found in the hands of a private collector.

There’s a stumbling block though: the private collector is concerned about “reprisals”. Some collectors who scavenged old film reels that the BBC had discarded were concerned about their liability for theft. Other collectors may be concerned that they infringed copyright in recording these episodes from the TV at the time of broadcast.

As an IP lawyer, I will leave it to someone else to consider if taking a discarded item from the bin is theft.

Looking at the law

The Doctor’s TARDIS allows him or her to move anywhere in time and space.  So, what would the copyright position be if these lost episodes had been recorded off the TV in 2023 Australia, rather than 1960s England? Step into the blue box and find out…

The original master tape of a Doctor Who episode would be protected as a “cinematograph film”. That’s the term that the Copyright Act 1968 uses for any film or video; it is not limited to movies shown in a cinema. The copyright holder in the cinematograph film has the exclusive right to make a copy of the film (plus other rights). Separate rights can exist in a television broadcast, with the copyright holder having the exclusive right to make a film of the broadcast, or a copy of such a film. This means that when the Doctor Who episodes were copied from the TV broadcast in the 1960s, they would have infringed copyright in that broadcast and the underlying cinematograph film.

There is an exception under section 111 of the Australian Copyright Act 1968. This includes making a recording of the broadcast for private and domestic use to watch at a more convenient time. It’s what we all used to do before streaming became a thing. However, that exception is taken to have never applied if a further copy is made, or an article embodying the film is used to cause the film or recording to be seen in public, or for broadcasting the film or recording. The concern is that if the copy is provided to the BBC, the exception for the individual collector may be lost. Under section 11(3), later dealing with recordings can mean that the exemption from infringement never applied.

The Copyright Act 1968 does contain some other specific exceptions relating to preservation purposes. However, those are limited to an authorised officer of a library or archive, and particular conditions must be met. Even without those strict conditions, the Whovian recording the broadcast in the 1960s wouldn’t have known that they would end up playing such an important preservation role. Who knew the BBC would exterminate dozens of episodes by throwing them out or recording over them? I mean, they’re the BBC, not the Daleks.

Key takeaways

Intellectual property rights like copyright are important in protecting the fruits of creative endeavour, thereby encouraging creativity. But IP right holders need to be smart about how they exercise them.  Taking a commercial approach requires a consideration of what the underlying objective is – IP rights enforcement might be just one tool.

In this case, if the news report is correct, the BBC should consider an amnesty to private collectors who historically made copies for their own personal use. The BBC’s objective is to receive these precious copies, rather than deal with somebody who is pirating them for profit.  It would be a shame to have those copies stay hidden, or even worse, for them to join Gallifrey in oblivion.

At Macpherson Kelley, we pride ourselves on being commercial in our advice. So, get in touch. Don’t worry, it won’t shatter the continuum of time and space.