[pd-discuss] Copyright on unpublished or recently-published works from long-dead authors
Peter B. Hirtle
pbh6 at cornell.edu
Wed Dec 16 15:27:52 UTC 2015
After I sent my response about US publication, I remembered that I had asked an English colleague about what constituted "publication" in the UK. Specifically, I wanted to know if the UK had the same requirement for authorization as the US. The reply is exactly on target to this discussion:
"On publication, UK law is the same as US law. For the purposes of copyright, a work is published when copies are issued to the public or when it is made available to the public by means of an electronic retrieval system (which I have always understood to mean a computer).
There is a 'however':
- in determining publication, no account shall be taken of an unauthorised act (CDPA s175(6), and for the definition of 'unauthorised' see s178).
Thus the issue to the public of an unpublished manuscript dating from the 17th century will not have the effect of making it a published work for copyright purposes unless someone has gone to the trouble of tracing the rights owners and securing their consent."
It sounds as if that 1939 publication may not have been a publication and the 17th century poem would be protected until 2039. As Andrew Gray notes, you would have to decide if you wanted to ignore this copyright or seek an orphan works license.
Peter Hirtle
-----Original Message-----
From: pd-discuss [mailto:pd-discuss-bounces at lists.okfn.org] On Behalf Of Andrew Gray
Sent: Wednesday, December 16, 2015 8:41 AM
To: Public Domain discuss list
Subject: Re: [pd-discuss] Copyright on unpublished or recently-published works from long-dead authors
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The "unpublished is in copyright until 2039" rule only applies to material which was unpublished in 1989.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<mailto: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<mailto:andrew.gray at dunelm.org.uk>
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