Professor David Vaver is a Member of IP Osgoode’s Advisory Board and a Professor of Intellectual Property Law at Osgoode Hall Law School.
Professor Pina D’Agostino is the Founder and Director of IP Osgoode and a Professor of Intellectual Property Law at Osgoode Hall Law School.
In the recent copyright infringement case of Winkler v Hendley, the plaintiffs — the heirs of the late Thomas P. Kelley who authored The Black Donnellys (1954) and Vengeance of The Black Donnellys (1962) — sued as owners of the works’ copyrights because of a special provision in the Copyright Act, RSC 1985, c C-42. Section 14 of the Act returns any copyrights that an author assigned during his lifetime to the author’s estate 25 years after his death. Justice McHaffie referred at para. 14 of his judgment to the plaintiffs’ having acquired their rights “by operation of [that section] known as the ‘Dickens’ provision.”
This is not the first time that section 14 has been referred to as “the Dickens provision.” Over 20 years ago, in Anne of Green Gables Licensing Authority Inc v Avonlea Traditions Inc, Justice Wilson wrote that “[t]his complex statutory framework of reversionary copyright was originally created in England to relieve against hardship suffered by the impoverished families of deceased authors; it is known colloquially as the ‘Dickens’ provision.” Some American and Canadian writings since then have also referred to section 14 that way. The story seems to be that the original reversionary provision in the Copyright Act 1911 (U.K.) (the “1911 Act”), which made its way into the copyright law of Canada and other British dominions and territories shortly afterwards, was enacted following public outrage that the publishers of Charles Dickens’ books were making money off them while the many members of the late author’s family remained destitute.
If true, this would be a good — indeed almost Dickensian — story. It however seems hard to see how the 1911 provision would have helped Dickens’ family. The 1911 Act extended the term of existing copyrights and applied reversion to existing assignments; but all of Dickens’ copyrights had expired by then and the Act did not revive them.
We are curious to know more about this origin story. For one thing, the UK parliamentary debates preceding the UK’s 1911 Act do not appear to mention it; nor do any of the British textbooks on copyright of the period; nor do members of the English copyright bar we have approached know anything about it. Admittedly, the UK repealed reversion in 1956 for future works, but it continued to apply it to then existing assignments, as those familiar with the Redwood litigation from the 1970s will be aware: see e.g., Chappell & Co Ltd v Redwood Music Ltd  RPC 337 (HL) and the parallel proceedings in Redwood Music Ltd v Bourne Estate (1995) 63 CPR (3d) 380 (Ont SC), affd (1999) 84 CPR (3d) 414 (Ont CA).
Can any IPilogue reader shed light on whether section 14 truly deserves the name of “the Dickens provision”? Does the nomenclature rest on fact or folklore?
Please reply in the comment section below or directly to firstname.lastname@example.org or email@example.com. Any insight gratefully received.
FICTION v. TRUTH’S v. FACTS
Justice McHaffie’s decision in Winkler v. Hendley brutally undermines 67 years of research of court, police, newspaper and historical records following Thomas P. Kelley’s 1954 publication of The Black Donnellys.
Is it copyright infringement to copy fictional details represented as truth’s in a prior work that have no historical record of being facts at all? “FACTS ARE ALWAYS TRUE BUT TRUTH’S ARE NOT ALWAYS FACTS”
Justice McHaffie based his decision on Thomas P. Kelley’s tag line “The True Story of Canada’s Most Barbaric Feud”, so are we to determine that Nate Hendley’s tag line “The Outrageous Tale of Canada’s Deadliest Feud” suggests his book is fiction?
Justice McHaffie concluded that “The Black Donnellys” by Thomas P. Kelley is the “true” and “factual” story of the notorious Donnelly family of Lucan, Ontario. and that the defendant, nonfiction, true crime writer Nate Hendley, author of “The Black Donnellys” copied many truth’s (not facts) from Kelley’s book. It was also recognized by Justice McHaffie that the defendants nonfiction, crime/biography book about the Donnelly’s contains fiction.
Which begs the question, why does Nate Hendley, a true/crime researcher, nonfiction writer include fictional elements in his book titled “The Black Donnellys”?
Justice McHaffie grossly erred in not asking the question, are there more fictional events and incidents in Hendley’s nonfiction book that are passed off as truth’s?, and where were they copied from? Take a guess!