Copyright Aid

I have just seen this on a forum that I belong to. ......

Just to make life more tedious and expensive, the copyright laws have recently changed. From January 2021 (and IIRC) to publish an previously unpublished literary work you have to get the permission of a descendant of the creator! I had to get permission from the descendant of the creator of an 1875 document (which is now copyright until 2039) in a library to publish a transcript in a book. A professional researcher traced a descendant for me (fees for 3 hours work!). The alternative was to prove that a diligent search had been conducted (and pay a fee, of course). There was an explanation in a government document which appears not to be available any more. It was https://assets.publishing.service.gov.u ... y-work.pdf

A relevant document that is still available is https://www.gov.uk/guidance/protecting- ... -uk-and-eu.

What has changed? Has this person got the wrong end of the stick?

Hi Roger,

The person you quoted has got it slightly worng in that the situation he/she described with respect to unpublished works has a long history and did not change as a result of leaving the EU. Briefly the history of that issue is that prior to the 1988 Copyright Designs and Patents Act, unpublished works were, effectively, subject to perpetual copyright until such time as the owner of the copyright authorised the publication, after which the 'normal' copyright term kicked in, that is to say the lifetime of the autthor plus, initially, 50 years after their death. EU legislation in 1993 extended the post mortem period to 70 years. The 1988 Act applied the standard term to all works whether published or not but it wasn't retroactive for works created before the Act came into force. To address that issue the Act specified that any existing unpublished work would have a fixed term of 50 years from the date the 1988 Act came into force, which was 1 August 1989. This was how the date of 2039 came about.

Many institutions such as museums, libraries and archives, which held quantities of previously unpublished works, lobbied for a change, especially where it was impossible to locate the current owner of the copyright due to the passage of time. This resulted in the EU and the UK setting up orphan works licensing schemes. The EU system was only available to the instititutions, such that where these bodies carried out a diligent search but were unable to locate a current copyright owner for a particular work, they could register the work in question with the EU's Intellectual Property Office (EUIPO) in Allicante, and obtain a licence to publish the work unless an heir came forward to claim the copyright. The UK adopted both the EU system and also set up a similar, parallel system which anyone could use, with the licences for the latter system being issued by the UK's IPO. The main difference was that the UK system required that a licence fee had to be paid* and the licence only lasted for 7 years, although it could be renewed. Once the UK left the EU the EU Orphan Works scheme ceased to apply here and indeed all the works previously registered by UK intstitutions at Allicante reverted to their previous status. This was unfortunate as the UK museums, libraries and archives had been among the most enthusiastic users of the EU system.

The UK orphan works scheme continues to operate and this is what the writer was probably referring to when he/she talked about paying a fee. However employing a professional researcher to track down the current owner of the copyright is not reqired; only a diligent search is necessary. The guidelines on this still exist and can be found here.

It is worth noting that if a copy of an unpublished works is required for private study or research and is not going to be commercially published, the existing exception found in section 29 of the CDPA still applies and it is not necessary to seek permission or go to the lengths of getting an OW licence.The other main exceptions (criticism/review, quotation etc) only apply to works which have been lawfully made available to the public.

* The fee is based on a notional market rate for a similar work and is held in escrow in case the copyright owner comes forward, in which case the fee is paid to them.

Thank you for your helpful reply