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Schedule I, Transitional Provisions & Copyright duration

 
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Jake Wade
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PostPosted: Sat Oct 13, 2012 8:13 pm    Post subject: Schedule I, Transitional Provisions & Copyright duration Reply with quote

Hi group, I am a new member seeking enlightenment in the arcane & mysterious world of copyright.
I am, with others, researching the life and work of an english poet/author born1882, died- 1954.
I have discovered that the Imperial War Museum (London) are holding four manuscript books of her poetry deposited with them, by her, in the early 1920's.

I have sighted the books and they are extremely interesting to us. The contain about 190 poems of which 40 seem to be previously unknown.
However, the stand taken by the IWM is that copying is forbidden under the 1988 Act & the 70 year rule ( = Jan 1st 2025 )

Having perused the regulations I came upon SCHEDULE I, Transitional Provisions. Section 12, DURATION of COPYRIGHT in EXISTING WORKS.
This seems to me to say that work that existed at the commencment of the 1988 Act is governed by the 1956 Act. This would mean copyright existed for 50 years after the poets death not 70??

I would be grateful for yours thoughts on this.

Jake
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AndyJ
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PostPosted: Sun Oct 14, 2012 9:23 am    Post subject: Reply with quote

Hi Jake,
I agree with you about the arcane nature of some copyright legislation, amongst which the transitional arrangements certainly rank as obscure at times. The practical outcome of the various provisions can vary wildly between copyright having ended in 2005 to still being in force until 2039!
The way that Schedule 1 works can be seen from paragraph 3:
Quote:
3 The new copyright provisions apply in relation to things existing at commencement as they apply in relation to things coming into existence after commencement, subject to any express provision to the contrary.

In other words, any work which was in copyright on 1 August 1989 (when the 1988 Act came into force) automatically gains an extra 20 years on its term, unless it falls into one of the specific categories which are then outlined in the following paragraphs of the Schedule.
Before going into those details it is worth just explaining how the 1956 Act, and before that the 1911 Act, treated unpublished works. Broadly speaking if something was not published during the author's lifetime then the 50 year copyright term did not start until the work was published. This left a somewhat messy situation in relation to the 1988 Act which basically treats both published and unpublished works in much the same way, namely that the 70 year term commences at the end of the year when the author dies.

Returning to Schedule 1, paragraph 12, to which you referred, this only concerns works which were not published during the author's lifetime. I'm not sure from your posting, where you mentioned 'books' whether these were published volumes, or just private notebooks. Your comment that some of the poems may be previously unknown suggests the latter.
If these poems have never been published (or broadcast or performed in public) either before or after the author died, then under paragraph 12 (2)(a) the copyright term of 50 years provided for under the 1956 Act will have started on 1 August 1989 and the unpublished works will be free of copyright on 2 August 2039. The Act doesn't say this, but technically speaking if you can obtain permission from the heirs to the author's estate* you could publish any poems which fall into this category.

If however the poems were published posthumously, in the period from after the author's death in 1954 up to 1 August 1989 then the provisions of the 1956 Act would have kicked in and the 50 year term will have started on the date of publication. In this situation paragraph 12 (4)(a) merely confirms that 50 years remains the correct term for works in this category. So, for example if the poems were published in the year after her death, 1955, copyright would have ceased in 2005. Although it is less clear from the wording of Schedule 1 (specifically para 12 (6)), anything published after 1 August 1989 would be subject to the same lifetime plus 70 years as would apply to new works created after that date.

So finally, if the work were published in the author's lifetime, then none of the provisions in paragraph 12 apply, and as mentioned earlier any existing term would have been automatically increased to 70 years from the end of the year of death, so in this case, until 1 January 2025.

It was worth making the point that despite any copyright term which may exist, if you can obtain permission form the current copyright owner - assuming they can be found - then re-publication is perfectly possible.

*If the author mentioned the deposited poems in her will, this may have clarified if the IWM was also gifted the literary copyright as well as the physical books of poems. If this was the case, then they could give permission for publication of any unpublished poems. Alternatively if there was no mention of the poems in her will then in the normal course of events the natural heirs retained the copyright, even though the physical books were gifted or permanently loaned to the IWM. If the IWM can't tell you about this, it might be worth seeking out the author's will at the Probate Registry to try to clarify the situation. If there were other works by the author, then it seems likely that some provision about literary copyright generally should have been made in her will.
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AndyJ
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PostPosted: Sun Oct 14, 2012 10:24 am    Post subject: Supplementary comments Reply with quote

Jake,
It's occurred to me that I have assumed in my earlier reply that you want to publish these poems, whereas re-reading you posting, you only mention 'copying'. If the IWM have said that you cannot have a copy of the poems, then that is wrong.
Under the fair dealing provisions in Section 29, you may make a copy of a copyright work if it is for the purposes of research or private study. Furthermore a librarian or archivist is permitted under Section 39 to make a copy of part of a published work, or under Section 43 the whole of an unpublished work, on your behalf, subject to you signing a certificate to the effect that you will only use the copy for research or private study of a non-commercial nature. Since I would expect every librarian or archivist to know this basic legal provision, I assume that that is not what you are referring to.
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Jake Wade
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PostPosted: Wed Oct 17, 2012 9:01 pm    Post subject: Reply with quote

AndyJ,
Many thanks for your lucid explanation. I am sorry to be so tardy in replying but I was waiting for replies from other sources so that I could review all the answers - but to no avail!! Yours was the only reply.
Here's the picture.
The poet in question is CICELY FOX SMITH, (1882 - 1954), never married, no children.
She published approx 48 books of poetry & prose from 1899 till 1955 - the year following her death - also about 50+ short stories and articles.
THE COMPLETE POETRY of CICELY FOX SMITH edited by Charles Ipcar & James Saville was recently published in America and I have been assisting (in a volountary capacity) with various research tasks in the UK.
In my search through many online catalogues I came upon four manuscript notebooks deposited by CFS with the Imperial War Museum in about 1925/6?
These contain work already known to us from her existing publications together with 40 previously unknown & never published poems.
We had hoped to harvest these for future publication in a second edition.

Sooo, as I now understand it, there are no loopholes! and -
with the exception of the one book published in 1955, ALL her previously published work, from 1899 until her death is copyright for 70 years from 31/12/1954, becoming free of copyright on 01/01/2025.
Any unpublished work remains in copyright until 02/08/2039.

Under the fair dealing provisions I believe a portion of the work is allowed to be copied but according to the IWM each individual poem IS THE WORK, not the complete book. So they decline to copy poetry.

As for obtaining the copyright holders permission. In her will CFS left ".. all my real and personal estate to my sister MARGARET SCOTT SMITH ..".
Now MSS never married, had no children, and died in GUERNSEY in Sept 1973.
Guernsey has Wills of Realty for property & land and Wills of Personality for money/jewellery/goods/chattels/etc .
An enquiry with the various authorities show no record of a will(s) in Guernsey.
I have not yet established the procedure for someone dying intestate in Guernsey.

The question is, If no copyright holder can be identified then is the only course of action to wait for expiry of copyright??
OR do the regs provide for such an eventuality?

regards
Jake
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AndyJ
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PostPosted: Wed Oct 17, 2012 10:41 pm    Post subject: Reply with quote

Hi Jake,
Good to hear back from you, and thanks for the additional details.
Firstly, if you are mostly interested in the unpublished poems in her manuscripts (on the basis that her published ones are already available from other sources) then irrespective of the IWM's interpretation that each poem is a complete work*, Section 43 allows an archivist to copy a complete work for you if it is unpublished. Alternatively there is nothing to prevent you copying a complete work - either published or unpublished - under Section 29 in order carry out research, for instance by operating the photocopier yourself or by transcribing the poems onto paper or a laptop. Whether the IWM allows you access to the manuscripts to do this is an entirely different matter, of course!
But neither of those provisions allows you to re-publish the poems without permission from the current owner of the copyright.
And this of course is the major issue you face. First of all, you are right that the Channel Islands have their own laws on the administration of estates where someone dies intestate. You can find more details here: Laws of Guernsey. The law changed last year, but clearly that will not affect the way in which Margaret Smith's estate was dealt with. However the practical outcome is the same (and indeed the same as the law in England and Wales) namely that the residue of the estate passes to the Crown in bona vacantia. Since intellectual property rights are intangible it is quite possible that nobody knows that they exist in this instance. I think a good starting point would be the Ecclesiastical Court of the Bailiwick of Guernsey to see if bona vacantia cases are administered locally on the island, or if they are handled along with other cases for England and Wales by the Treasury Solicitor's Department. In theory whoever notionally holds the estate on behalf of the Crown could grant a licence for you to publish the poems, including ones which have previously been published, unless you unearth any documentary evidence that an exclusive licence has previously been issued to a publisher, and that licence has not time-expired.
Assuming you go through the right bureaucratic steps, I see no reason why you should not be able to obtain a licence, although I have to admit I am unaware of a case where this has been done before.

* I think this is a correct interpretation, by the way.
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