[pd-discuss] Copyright on unpublished or recently-published works from long-dead authors

[Andrew Gray]

Hi Adam,

The "unpublished is in copyright until 2039" rule only applies to
material which was unpublished in 1989. If it was published before
then it has whatever copyright it would have done under the old rules.
If published 1969 or earlier this would be 50 years copyright from
date of publication; if between 1969 and 1989 then it would also
remain in copyright until 2039. Anything first published after 1989
gets a progressively smaller period of copyright until the
transitional provisions expire in 2039. The controlling legislation
here is Schedule 1 of the 1998 CDPA:
http://www.legislation.gov.uk/ukpga/1988/48/schedule/1 referencing
section 2 of the 1956 Copyright Act:
http://www.legislation.gov.uk/ukpga/1956/74/section/2/enacted

In this particular case, first published in 1939, it seems like it
would have been public domain in 1990; see 12(2)(a) of Schedule 1 for
existing material published after the death of the author. If still
unpublished in 1989, it would fall under 12(4)(a) and be in copyright
until 2039.

In your second case... this is where the law gets weird. The copyright
would be with the heirs of Mr. Bloggs. Should Mr. Bloggs's heirs be
untraceable - as you'd expect - then you don't really have a clear
path forward. You could treat it as an orphan work -
https://www.gov.uk/guidance/copyright-orphan-works - but this is a bit
convoluted.

Alternatively, you could take the approach the BL did with the
Catalogue of Illuminated MS, and say "technically it's in copyright,
but this is very silly, so we're going to declare it PD and see if
anyone complains" -
https://www.bl.uk/catalogues/illuminatedmanuscripts/reuse.asp (Their
case was even more extreme, though, as these were artworks produced by
anonymous medieval scribes, several centuries before any modern
conception of "publishing"...)

Andrew.

On 15 December 2015 at 19:47, Adam Green
<adam.green at publicdomainreview.org> wrote:
> Hello,
>
> I have a question regarding copyright on unpublished or recently-published
> works from long-dead authors, which I was hoping the list might be able to
> shed some light on.
>
> The scenario involves an author who died in the 17th-century. He put pen to
> paper and created a poem, but it was never published in his lifetime. In the
> 1930s the manuscript is discovered in some long-forgotten draw and then
> published- in the UK, in 1939. And then republished in a few collections
> since.
>
> I know that public domain laws vary around the world, so I guess I'm
> thinking about the US and the EU as two main regions it would be interesting
> to know about.
>
> So far I've gathered that, for unpublished works:
> - in the US the copyright  is "life of the author + 70 years"
> - in the UK until 31/12/2039 (which is absolutely ridiculous!).
>
> For the work of my scenario outlined above (first published in 1939), things
> are less clear. I can't see anything clear in what I've read. Would anyone
> be able to help out with this? Or point me to some a good source which would
> tell me?
>
> I was also wondering, in the case of the totally unpublished work, about who
> actually owns the copyright. Say there is a written manuscript penned in
> 1650 by a Mr. Joe Bloggs. In the US he'd be out of copyright, but in the UK,
> not until 2039. If Joe Bloggs has no discernible estate as such then who
> actually owns the copyright? Would one be able to publish this work (for the
> first time) without permission? If not, who is one meant to get permission
> from? Is the library or archive that holds this manuscript in some way
> involved?
>
> Thanks in advance for any help you can give,
>
> All the best,
>
>
> Adam.
>
>
> --
>
>
> Adam Green
>
> Editor-in-Chief, The Public Domain Review
>
> @PublicDomainRev
>
>
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-- 
- Andrew Gray
  andrew.gray at dunelm.org.uk