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Although copyright is often in the headlines with respect to the music business it is less common to find copyright in unpublished literary works featuring so prominently.

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recently about an exception tucked away in the Copyright Act 1956 Section 7 which permits the making of a copy of an unpublished literary, dramatic or musical work “…with a view to publication”.You could be forgiven for supposing the 1956 Act entirely redundant but this particular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This could be a way around the 2039 rule, which gives extended copyright protection to unpublished works, by allowing publication in certain specific cases.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.

A recent IPKat blog post pointed out that  contrary to expectations a newly discovered and previously unknown work by Beatrix Potter, Kitty in Boots is still protected by copyright. The author died in December 1943 her published works came out of copyright after 70 years had passed, that is in January 2014. Kitty in Boots on the other hand is an unpublished work and is caught by the rule which keeps a vast number of unpublished works in copyright until 2039 (see previous blog posts explaining the 2039 rule and the recent Free our History campaign to have it changed). The copyright in Potter’s works was left to her publisher and now appear to belong to Penguin.

The 2039 rule is a peculiarity of UK law and is not found in the copyright regime’s of other EU member states, although anomalous differences in copyright duration are quite common. This has prompted organisations representing libraries and archives to lobby for a harmonisation of copyright term as part of the current review of  EU Copyright law. See for example Copyright for Knowledge and also LACA’s London Manifesto.

A biography of Joseph Goebbels by Peter Longerich, a prominent historian at Royal Holloway College specialising in modern German history, has stirred up a dispute about the copyright in Goebbels’s diaries, which has been widely reported on internet news sites. The original, German version of the biography was published in 2010 and the English language edition is due next month. As you might expect in a biography, Longerich quotes extensively from the diaries kept by Goebbels.

The basic copyright term in Germany is the author’s lifetime plus 70 years (as in the UK), so Goebbels’s works are in copyright until 2016. Nevertheless the publishers were surprised to be pursed for infringement of copyright in the diaries by lawyers on behalf of Goebbels’s estate. It is common knowledge that Goebbels’s immediate family died in Hitler’s bunker, so presumably the estate has been inherited by more distant relatives.

This raises an obvious moral question about family members making money from the diaries of this particular individual but it also illustrates the lengthy duration of copyright under EU legislation. In terms of UK copyright law, the diaries may be caught by the 2039 rule (which is nearly as difficult to understand as the offside rule!). If the diaries are truly an “unpublished work” then it looks as though they would indeed be in copyright for an additional 23 years in the UK.

Did you know that a broad swathe of historically important unpublished works is in copyright until 2039? A campaign has been launched by CILIP, the Libraries and Archives Copyright Alliance (LACA) and others to persuade the UK Government to press ahead with a small but significant change to the copyright term for unpublished works.

Once the copyright term for these work is reduced to the standard (and more reasonable) author’s lifetime plus 70 years, then museums, libraries and archives will have greater freedom to display and reproduce the unpublished works they hold. The more historical items will come out of copyright immediately. (See the previous blog post of 21 August 2014 for more background).

UCL Library supports the Free our History Campaign and would encourage colleagues in the cultural and educational sector to add their voices. There is a petition to sign on the CILIP web pages Libraries and museums can also participate by  displaying a “blank page” in place of a significant unpublished work they would like to exhibit but are prevented from doing so by the current copyright term for these works.

 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 1^st 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.

The proposed exception for quotation (New CDPA Section 30) will replace the existing “criticism and review” exception and is much broader. It covers quotation for any purpose, subject to the fair dealing test. The existing exception can only be relied upon when quoting for the purpose of criticism or review of either the work quoted or another work. The replacement is also broader in the sense that it covers unpublished works as long as they have been “made available to the public” (in an archive for example). This will be a positive change in area of historical research.

The exception covers all copyright works, including film and sound recordings, so it will widen the scope for including extracts from those media. It should be easier to include brief extracts in academic works, reducing the occasions where permission is required. Can one ever rely upon the exception to reproduce the whole of a work, for example a photograph, where merely reproducing a proportion makes little sense? This remains doubtful and would be a matter of applying the fair dealing test. Are we quoting more than is reasonable for our purpose? What is the potential for damaging the interests of the copyright owner?  Caution will still be required. As with some other proposed exceptions, this cannot be over-ridden by contract terms.

Did you know that 26^th April is World Intellectual Property Day ? To be honest neither did I but it is certainly worth celebrating!