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Public Domain - but only because I put it there

 
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DaisyGrubber
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PostPosted: Thu Apr 11, 2013 9:08 am    Post subject: Public Domain - but only because I put it there Reply with quote

I'm working on some unpublished memoirs of an indirect ancestor who died in 1910 (in the UK). I wanted them to be openly accessible, so have made them into a website, but as I was hoping to recoup some of the costs of this (image licensing and web hosting mainly) I also wanted to make them available as an ebook for a small charge and have turned them into one myself.

When it came to uploading the ebook to Amazon, I found that they would be regarded as public domain, because the author had been dead for X amount of years, and that therefore I would only be entitled to 35% royalties rather than 70%. I have written an introduction, but it's not more than I see no reason why Amazon should get 65% as I've spent a great deal of time typing the memoirs up, doing picture research and creating the website, so I have not uploaded it.

Any advice?

I've also considered just selling the ebook direct from the website but it seems to throw up a lot of technical difficulties.
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DaisyGrubber
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PostPosted: Thu Apr 11, 2013 9:11 am    Post subject: Reply with quote

I apologise for the error in the above post, the board will not let me edit it.
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AndyJ
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PostPosted: Thu Apr 11, 2013 2:36 pm    Post subject: Reply with quote

Hi Daisy,
As these memoirs are unpublished it means that despite the fact the author died in 1910, they are not in the public domain. In fact if you did not publish them they would remain in copyright until 2039. Assuming you are now the legal owner of the rights in the memoirs (more on this in a moment) then when you publish them, that begins the clock on a new term of protection which will last for 50 years from the date of publication, and you will be the owner of that publication right. This is an immensely complicated area and you might want to take a look at the Copyright and Related Rights Regulations 1996 (SI 1996/2967). The relevant bit is Regulations 16 and 17, but they are somewhat opaque in their detailed meaning.

The reason this is so complicated is that, prior to the 1988 Copyright Designs and Patents Act, unpublished works were treated differently to published works, effectively making the term perpetual until such time as an authorised person (the author or their heir) decided to publish the work. The 1956 Copyright Act (section 2(3) specified that when publication occurred, the copyright term would then run for a further fifty years. Since the 1988 Act removed the distinction between published and unpublished works made after 1 August 1989, it also had to include a mechanism for dealing with unpublished works made before that date. This was done in Schedule 1 to the 1988 Act, paragraph 12 (3), by making the fifty year period which would have previously only been activated by publication, now start with the commencement of the 1988 Act which occurred on 1 August 1989, hence the date of 2039 I quoted above.

I mentioned earlier that only the rightful heir to the original author's estate or specifically to the memoir itself, would have the right to publish now. To all intents and purposes, if you are the owner of the physical manuscript then you are almost certainly the owner of the copyright too. This arises because of a specific section (s 38) of the 1956 Act which says:
Quote:
38Copyright to pass under will with unpublished work

Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to the manuscript of a literary, dramatic or musical work, or to an artistic work, and the work was not published before the death of the testator, the bequest shall, unless a contrary intention is indicated in the testator's will or a codicil thereto, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

There are couple of provisos. You need to be a national of the UK or another EEA country and the first publication needs to be within the EEA. This second provision is the tricky one because Amazon is a US owned site and its servers are based in the USA, and that is why they are saying that the work is already in the public domain, because in US law it would be. However since you can control access to the original text, clearly no actual publication can take place without your permission.
I suggest you look at the possibility of either getting a UK online publisher to make the initial public offering or doing it yourself via the website you have set up*, and you can then switch to Amazon at a later stage, presumably at better rates than you have been quoted. I'm afraid I can't offer any advice on this specific suggestion, but you could ask the Society of Authors for their advice. Alternatively, if Amazon have a UK office which handles publications from the UK, it might be worth discussing this issue with them, but I suspect they will probably still operate under US law, so won't be able to help, if of course they wanted to, which they might not if it would lead to them getting a smaller return.

Don't forget that as you have added substantial creative effort of your own to the work, in the form of the introduction (and any scholarly annotations etc), it will qualify for separate copyright protection which will last for your life time plus 70 years, and there will also be protection for the typographical layout of the edition you have prepared which lasts for 25 years. Make sure you place the requisite copyright notices on the page after the title page, acknowledging your copyright in the material you have contributed, the author of the memoir itself, and any credits for the images you have sourced, plus the 25 year copyright in your published edition, together with the standard blurb you can find in most books about all rights being reserved, and that no part of the publication may be reproduced etc without permission. This is not strictly necessary in the UK, but may be required to gain full protection elsewhere in the world, and it does no harm to assert the copyright in this way. The starting date for copyright for everything except the images, will be the year in which you publish, presumably 2013.
Good luck with you project.


*publication in this context means any of the following:
(a) the issue of copies to the public;
(b) making the work available by means of an electronic retrieval system;
(c) the rental or lending of copies of the work to the public.
So technically as long as you have sold one copy via a recognised outlet available to the public, such as a website, publication has occurred. In order to be 100% sure you meet the need for publication to be in the EEA, make sure that your first customer is a UK or EEA national.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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DaisyGrubber
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PostPosted: Thu Apr 11, 2013 5:22 pm    Post subject: Reply with quote

Thank you so much for your reply. I'll pick through it properly later when I have more time.

What I should say is that the copy I have is typed, and we have determined that it was probably typed in about the 1910s after her death. There are two other copies in my family that I know of - two of my cousins have identical copies also typed.

I don't know where the original manuscript is if it still exists. I am not her direct descendant and we are not in touch with her direct descendants. I have no idea who her heirs may have been.

My main motivation is just to make the memoirs available, as they are of historical interest and a damn good read. If I can offset my costs that's just a bonus.
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AndyJ
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PostPosted: Thu Apr 11, 2013 6:27 pm    Post subject: Reply with quote

Hi Daisy,
As you can see from my earlier reply it is highly likely that this memoir is still in copyright. The typed copies available within your family do not count as 'publications' much in the same way most private letters are unpublished works.
As you are not a direct heir and do not own what might be described as the original manuscript itself, it is important that you make every effort to contact the author's heirs and ask permission to publish. It seems highly likely that they would give permission just for the recognition this may bring to their forebear. There are several ways this can be done if you do not have family members who can help to trace them. One method is similar to that used by genealogists and family history researchers, using details in wills and the registers of births, deaths and marriages available online, to identify direct descendants who are also likely to be the heirs. Also, if the person whose memoir you have was relatively famous in her day, try checking with places like the British Museum, county archives, and any other archives which may hold records about the author's life and other works, as they may also hold details about the author's descendants. If the author of the memoir was a writer or worked in a similar field (say, an artist or playwright) also protected by copyright, then it may be worth checking to see if the relevant copyright collecting society associated with her type of work (you can find details of them here) have a record of an heir as they might well have been collecting royalties up until 1960 on their behalf.
That said, as you may imagine, I don't think that failure to locate the heirs and get permission is going to be a showstopper after all this time.
Something I didn't mention previously, because it didn't appear relevant, is that legislation going through parliament at the moment looks likely to shake up this area of copyright law. Many anonymous unpublished works are currently in a kind of limbo for similar reasons to those which apply to the unpublished works of known authors. At the same time, as in your case, there are many unpublished works whose author is known but the current heirs cannot be traced, thus preventing the legitimate publication of these often interesting materials. Generically, these are known as orphan works. The new law will make it possible for specific agencies to be set up which will have the authority to licence the use of orhan works - both the unpublished ones from known authors, and those from anonymous authors, thus releasing some culturally useful works - not just literature, but old films, TV programmes, oral histories, works of art, and photographs etc - for the greater enrichment of society - much as you would like to do with these memoirs. Although all that is a couple of years away, it may provide another avenue for you to legally publish these memoirs.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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