I was reminded recently about an exception tucked away in the Copyright Act 1956 Section 7 which permits the making of a copy of an unpublished literary, dramatic or musical work “…with a view to publication”.You could be forgiven for supposing the 1956 Act entirely redundant but this particular measure is preserved by Schedule 1 paragraph 16 of the current Act (CDPA 1988).

The main conditions are that at the time at least 50 years have elapsed since the end of the year in which the author died and at least 100 years since the work was created.  Also the work must be kept in a “…library, museum or other institution where…it is open to public inspection.”

This could be a way around the 2039 rule, which gives extended copyright protection to unpublished works, by allowing publication in certain specific cases. Section 7(7) of the 1956 Act goes on to confirm that publication of the whole or part of the unpublished work in these circumstances is not infringing.

A significant condition is added at 7(7)b: “Immediately before the new work was published, the identity of the owner of the copyright in the old work was not known to the publisher of the new work…” So in a way the exception only applies to “orphan works” although there is no explict demand for a diligent search (or even a not so diligent search).

My enquiry related to the letters of an artist who died in 1932, satisfying the 50 years test. The letters however were from the 1920s, which is too recent. In order to fulfil the conditions of the exception the unpublished work would need to be created no later than the first half of 1917.

On the other hand there could be many older unpublished literary, dramatic and musical works held by libraries, museums etc. where publication would be covered by the exception.

The draft EU Directive on Copyright in the Digital Single Market is currently being scrutinised by a series of European Parliamentary committees and is open to proposed amendments which could either maximise the usefulness to the HE and research sector of the proposed copyright exceptions or alternatively render them quite unhelpful. This is the subject of a great deal of advocacy by groups supporting a more user-friendly copyright framework and those who are opposed to more generous exceptions.

In this context UCL Library Services has recently lent its support to the European Alliance for Research Excellence (EARE) which provides a platform for those advocating a more generous EU wide exception for Text and Data Mining (TDM).

The original wording of the draft Directive (Article 3) provided an exception only for the benefit of a narrowly defined class of “research organisations” run on a non-profit basis. That would create uncertainty about the position of collaborative projects of all kinds between universities and commercial organisations, including technology based start-ups.

The position of EARE is that since one has to have “legal access” to the information in order to carry out TDM under the exception then the exception should be available to anyone who has legal access not just a narrow class of research organisations.  This is an significant issue for the future of research in Europe given the importance of TDM in all areas of research.