Publishing old diaries?

Tracing copyright owners and asking permission.
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Kendal
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Publishing old diaries?

Post by Kendal »

Hello!

I will try to give as much pertinent information as possible here, I'm hoping for some advice (obviously). In case it's relevant, I'm an American living in the Netherlands. I have a growing collection of antique diaries which I read and research, scan and share, and attempt to return to their living descendants. Three success stories so far. However, many of the diaries are either from generations ago, or by someone who never had children and for whom I cannot seem to find living relatives. I have a set of diaries in particular that I would love to publish, as she was a very engaging author. She lived in London and the diaries I possess span the years of 1924 to 1939. I am wondering how I could safely publish them. I do know her name and more information about her, who she married, when she died, but I really have not been able to find any relatives.

I haven't read through all the diaries I have, and I keep buying them (faster than I'm reading them...) but I'm also hoping to find other interesting journals that I could publish, perhaps from the 19th century - I assume those would be fairly safe to publish, and could be valuable historical resources. But I do love this girl's writing, and I would love to share it, and, yes, earn a little bit of money to support buying more diaries. I'd love to find a way to have this passion support itself, and publishing the best ones is my only idea at the moment.

So what are my options?
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AndyJ
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Re: Publishing old diaries?

Post by AndyJ »

Hi Kendal and welcome to the forums,

Since this author was living in London (and irrespective of her actual nationality) the applicable law will be that of the UK. However if you were to publish the diaries while you are in the Netherlands you may also need to, briefly, consider Dutch / EU law, in case this offers you any additional protection or problems. I will come to that bit later.

Under the old UK law any unpublished work made before 1 August 1989 fell into a kind of limbo, and could not be published without the author's permission, or after their death, the permission of their heirs, and only then did the actual period of copyright protection begin to run. As a consequence most works which were unpublished during an author's lifetime were headed for perpetual copyright protection. This is clearly ludicrous and so the law was amended in 1995 to say that all such unpublished works would enter the public domain on 1 January 2040, that is, 50 years from the end of the year the Copyright Designs and Patents Act 1988 came into force. I imagine you don't want to wait another 17 years.

But all is not lost. A number of heritage institutions such as archives, libraries and museums across Europe have been pressuring therir respective national governments to relax such rules, and this has led to the orphan works licensing project, or should I say, two projects. The EU's response was to allow these institutions to conduct a diligent search for any heirs or copyright owners and if this was unsuccessful, they could certify to the EU Intellectual Property Office (IPO) they had done search,and permsission would be given to make such items available to the public as digital copies. UK went one step further and offered a similar scheme to any member of the public to obtain an orphan works licence following a diligent but unsuccessful search for a present day putative owner of the copyright. The snag with the UK scheme - which I would advise you to use for your project - is that the licence which the UK IPO issues only covers the legal exploitation of the newly published work within the UK. However since the author may well have been British, maybe any secret present-day heir would also be British and so you would remain indemnified against any claim by them. You can read more about the scheme here: UK Orphan Works Scheme. As you will see, if you group all the diaries together in one application the cost is fairly modest. The UKIPO staff can also give you an idea of the cost to the licence, which I suspect will be minimal.

Dutch/EU law will not recognise a UK IPO orphan works licence as valid there, and as I mentioned, the EU scheme (more details here) is not availale to private individuals, so that would leave you open to being sued in the Netherlands or elsewhere within the EU if the actual heir to your diary writer came forward in one of those countries. Only you can assess the risk of this happening. No doubt there are enough clues in the diaries about who the family were and where their roots appeared to be.

One final point. If you do get a UK orphan works licence you will then be able to publish the diaries legally ('with authority') in the UK. However the licence is not an exclusive one, and so it will not provide you with any protection (of your investment in publishing the diaries, for example) if the work is then re-published by someone else.

If you think this is complicated, be thankful you are not contemplating doing this in the USA with an American author!

Good luck with your project.
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
Kendal
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Re: Publishing old diaries?

Post by Kendal »

Hello! Thank you for that extensive reply. I will check out those links. It's so strange how copyright is different all over the world. I mean in an age where books cross oceans, and we read things digitally.... how does one make SURE that something stays in one country? I mean I think a big part of my audience would be in the US, and I'd want to create the book through IngramSpark, most likely. As for her family... well she was definitely English, however I know she had some family in Germany. I'm unsure how to search further... I have Ancestry.com and I've hit dead ends. I'm trying to reach out to a temple she was associated with, as someone mentioned remembering her in a Facebook group (but they haven't responded to me). I'd love to find out if she had a will, and who handled the auction of her estate and all... But I've been trying for a while now.
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AndyJ
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Re: Publishing old diaries?

Post by AndyJ »

Yes while the laws vary from country to country, there are international agreements which govern how copyright protection is enforced between states. Generally the place where a work is first published will determine the term of protection, but obviously in your case that doesn't help as the diaries haven't been published. On that basis you only need to look at UK law.

If you do decide to apply for an orphan works licence then the preliminary work you are doing now to find an heir will all count towards the diligent search you will be expected to carry out for a licence. To find a will, and hence a lead to an heir, you can use this website: https://www.gov.uk/search-will-probate It's a bit clunky and it really requires that you know roughly when she died, otherwise it's very tedious to search year by year, especially if she had a relatively common surname. The other place to look is in old newspapers for a death annoucement. Especially check the papers for her local area, if you know it. These frequently have a contact point for the family or whoever is arranging the funeral: https://www.britishnewspaperarchive.co.uk/
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
Kendal
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Re: Publishing old diaries?

Post by Kendal »

Oh wow, thanks for those links. It looks like there's something for her on the probate site, so I'll order that now.

I've been digging and found that some of her papers and photos were left to a Baha'i temple she was a member of so I'm following up on that, and I found that an aunt and uncle of hers fled to the US during the war so it looks like there are living relatives in the US.
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