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Letters and copyright in the news

Chris JHolland9 October 2019

One of the issues faced regularly by archives which hold the correspondence of a prominent person is that the letters will have multiple copyright owners. Copyright in a letter belongs to the author and typically there will be many authors. This becomes an issue when you need permission to digitise or publish letters from the archive.

The ownership of copyright in letters has been thrown into the spotlight by the legal action brought by Her Royal Highness the Duchess of Sussex against Associated Newspapers with regard to the alleged publication of private correspondence in the Sunday Mail. Infringement of copyright is one of the claims, perhaps the main claim.

The underlying copyright issues are discussed in depth here on the IPKat blog including the difficulty the newspaper might have if they try to claim their use of the letters was covered by one of the exceptions to copyright contained within Section 30 of the Copyright, Designs and Patents Act 1988 (CDPA), which deals with “fair dealing” for the purpose of criticism, review and quotation more generally. The difficulty for the publisher is that the letters in question must have been previously “made available to the public” with permission of the copyright owner (the Duchess in this case), otherwise the exception does not apply (by virtue of CDPA Sub Section 30,1ZA,a). It seems unlikely they could claim that this condition has been fulfilled.

Although copyright is often in the headlines with respect to the music business it is less common to find copyright in unpublished literary works featuring so prominently.

 

 

Unpublished Works and 2039

Chris JHolland21 August 2014

 Unpublished works pose particular problems, especially for archives. A quirk of copyright law means that many of these works, including some very old documents are in copyright until 2039.

Before the Copyright, Designs and Patents Act 1988 came into force on 1st August 1989 the situation was even more restrictive. Some unpublished works enjoyed perpetual copyright. The CDPA redefined the duration of copyright for those works to 50 years after the new Act came into force, in other words the end of 2039.

Among the works affected are previously unpublished works of known authorship created before 1st August 1989, (except pre June 1957 photographs), in all cases where the author died before 1969. The letters of a prominent scientist, written prior to 1989 and never published would be in copyright until 2039.

It follows that if we wish to reproduce any of those letters, we need permission from the copyright holder, who could for example be a descendant of the author. This situation affects the use of extensive material held by the National Archives and similarly restrictive rules apply to some unpublished material which is Crown Copyright.

Could there be change on the horizon? The Government has given itself powers via the Enterprise and Regulatory Reform Act 2013 to amend this particular quirk of copyright duration. The result will be that some unpublished copyright works will move into the public domain while others will have a shorter term. We await the Statutory Instruments needed to implement the changes.

 

 

Help is at hand for neglected “Orphan Works”

Chris JHolland25 April 2014

What are “Orphan Works”? An example: We own an archive of personal correspondence bequeathed by an individual. An author wishes to quote from the letters in a biography. The letters by the person are still in copyright (we know the date of death), but who inherited the copyright? Was it left to our archive along with the documents? Letters to our subject from others pose further problems: Copyright is defined by reference to the life span of each correspondent and it could belong to a range of people.
These are orphan works: Likely to be in copyright, but the owners either cannot be identified or if identified cannot be found. The danger in re-using orphan works is that a copyright owner will appear who objects, with the possibility of legal action.
Help will be at hand come Autumn 2014 with the implementation of the EU Orphan Works Directive, Directive 2012/28/EU. This will provide a route for cultural organisations to legitimise re-use of orphan works (excluding stand-alone images such as photographs) on web sites by:
Registration with the Office for Harmonisation in the Internal Market.
Recording on the OHIM database the results of our “diligent search” along with any information on rights owners we have discovered.
A re-emergent copyright owner will be entitled to “fair compensation” from us. The Directive is intended to cover digitisation for web sites, not broadcasting or distribution. No help to our author but it will assist non-commercial projects to make orphan works available on the web.