Hi Mary,
Yes it is confusing and not at all obvious, but most unpublished works remain in this limbo state until either they are lawfully published or the end of 2039! Parliament and the Intellectual Property Office (IPO) are aware of this anomaly and are in the process of devising a system to free up works like those you describe. Late this year, the IPO should publish a draft Statutory Instrument on the licensing of orphan works (works whose copyright owner is either unknown or untraceable). But it may be some time before the system is fully up and running for all classes of works. As you might imagine libraries, museums and archives which hold a vast quantity of this kind of work are very keen to be able to make it fully available to the public.
As for who is the original owner of copyright in an engraving or lithograph, much will depend on how and why the work was created. If the work was commissioned, then the owner of the copyright would be the commissioner, or if the engraver was employed by a company, then his employer would own the copyright. Prior to 1862, copyright was largely concerned with printed books, ie literary works, and the law was there as much to protect the publishers and booksellers as it was for the authors. In 1862 the Fine Art Copyright Act was passed and for the first time copyright protection was extended to paintings, drawings and photographs which had not been published in book form, or indeed published at all. Engravings and lithographs were not explicitly mentioned in this Act, and to a certain extent they were covered by earlier legislation if they had been published in book form as was common, for instance as a volume of maps. The 1842 Copyright Act had earlier defined a "book" as including
... every Volume, Part or Division of a Volume, Pamphlet, Sheet of Letterpress, Sheet of Music, Map, Chart or Plan separately published.
(
source; <a href="http://copy.law.cam.ac.uk/cam/tools/req ... =small">An Act to Amend the Law of Copyright 1 July 1842, section II</a>)
But that of course only covers published works of those types. In fact the 1842 Act does not deal with unpublished works, and so it was not until the 1911 Copyright Act that the idea of separate provision for unpublished works was introduced. And this provision was that authority to publish a work was one of the rights reserved to the copyright owner (as it is today), and although the works were protected by copyright from the moment of their creation, the length of the term of protection would not commence until publication was authorised. This is how the anomaly arose whereby unpublished works effectively went into limbo if their author or heir did not authorise their publication. This situation continued when the 1956 Copyright Act came in, and it was not until the 1988 Copyright Designs and Patents Act, that a finite end was placed on the copyright term for such unpublished works. This was set at 50 years from the coming into force of the 1988 Act (which occurred on 1 August 1989, hence the date of 2039 which you mention).
And as you point out all of that applies to unpublished works where the identity of the artist is known. If the work is anonymous, then section 12(3) of the CDPA applies:
(3) If the work is of unknown authorship, copyright expires—
- (a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or
(b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available
and from subsection (a) it can be seen that this applies even if the work has not been published. So as you say, a most bizarre state of affairs.
And finally, if the name of the artist/author is known but he/she is obviously long dead, in theory his/her heirs will own the copyright, provided the work was not either commissioned or something created in employment, in which case the copyright will belong the heirs of the commissioner or company respectively. However after 200 plus years it will be exceptionally difficult to trace those heirs unless their lineage has been well documented, as, say, might be the case with a titled family whose ancestor commissioned the engravings. Since you think these engravings have not been published, it is less likely that they were produced in the course of employment, because presumably the purpose of such a project would have been to publish.
If these engravings/lithographs are held in an archive or library etc, it would be worth talking to the curators about their provenance, as it may be the archive will have details about how they were acquired, and hence a possible lead to the current owners of copyright. If you are really lucky, the engravings might have been bequeathed to the archive, in which case the presumption is that copyright ownership would also devolve to the archive along with physical artefacts, and the archive could now authorise publication if they so choose.
Any advice on the following questions would be much appreciated!
