New Copyright Exceptions due to become law on 1 October 2014

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AndyJ
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New Copyright Exceptions due to become law on 1 October 2014

Post by AndyJ » Wed Jul 30, 2014 1:51 pm

Regular readers of the forums here may have seen references to various prospective changes to the fair dealing exceptions to copyright for private copying, quotation, parody and pastiche.
Yesterday afternoon, the House of Lords voted into law the Statutory Instruments necessary to make these changes, which will come into effect on 1 October 2014. You can read the relevant SIs here:
The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014
The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014
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Post by Nick Cooper » Tue Aug 05, 2014 1:42 pm

Have there been any developments with the rules regarding unpublished works, which I think you've mentioned previously?

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Post by AndyJ » Tue Aug 05, 2014 7:22 pm

Nick Cooper wrote:Have there been any developments with the rules regarding unpublished works, which I think you've mentioned previously?
Hi Nick,

You will recall that section 76 of the Enterprise and Regulatory Reform Act (ERRA) 2013 gave the Secretary of State the power to amend the duration of protection for unpublished works, but although most of the other changes authorised by Chapter 6 of the ERRA to do with copyright have now been implemented, this one remains in limbo. I haven't seen anything from the IPO to indicate they are working on a draft Statutory Instrument on the subject.

It is worth noting that the new Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014 (SI number not yet available) which come into force on 29 October 2014 permit a number of institutions such as not-for-profit libraries, archives and public service broadcasters to effectively publish unpublished orphan works (see serial 5 in the table in part 2 of the Schedule to the SI). This is the SI which brings into UK law the EU Orphan Work Directive (Directive 2012/28/EU) pdf. It should not be confused with the similarly named The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 (again no SI number yet allocated) which introduces the UK licensing scheme for orphan works. This latter SI makes no mention of the publication status of the work being treated as an orphan so it will be interesting to see whether the IPO, as administrators of the scheme, will allow unpublished works to be included.
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Post by Nick Cooper » Wed Aug 06, 2014 12:40 pm

OK. May main interest in this area is related to an author whose published works will fall into the public domain in the next few years, but that will still leave a lot of his unpublished works covered. The agents for the estate are notoriously demanding, and I would expect that will only get worse when all they have left to exploit is the unpublished works, unless there is a radical change in the rules.

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Post by AndyJ » Thu Aug 07, 2014 8:15 pm

Hi Nick,
I have sent a request for information on this to the IPO, but I have no idea when or if they will reply.
I have very little idea of what the possible reduction might be. The main constraint on the UK's freedom of movement on this subject is the EU Copyright Term Directive (93/98/EEC of 29 October 1993)* which states in Article 1, paragraph 1:
1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and 70 years after his death, irrespective of the date when the work is lawfully made available to the public
(my added emphasis)
The changes which will be authorised when section 76 of ERRA is implemented will solely be concerned with tidying up the situation created by the 1911 Copyright Act, which handled published and unpublished works differently. The Copyright Designs and Patents Act 1988 sought to resolve the matter by saying that all unpublished works created before the CDPA came into force would be entitled to 50 years protection from the date the 1988 Act came into force. This is where the date of 31 December 2039 comes from, being 50 years from the end of 1989 when the CDPA came into force. This was overly generous considering some of the unpublished works included under these provisions dated back centuries.

As an interesting aside, the same EU Directive (at Article 4) introduced something which came to be called 'publication right'. Here's what the Directive said:
Any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, shall benefit from a protection equivalent to the economic rights of the author. The term of protection of such rights shall be 25 years from the time the work was first lawfully published or lawfully communicated to the public.
From this you can see that if the estate which controls this author's work wishes to, it can continue to retain copyright-like conditions for a further 25 years, over any works it chooses to publish for the first time. This of course, assumes that they hold the only copy of the work. If other copies of the unpublished works are available in a place (such as a public archive) where scholars can gain access to them, things may take a different course. Incidentally, mere access in this way is not 'publication' or 'communication to the public'. Once the copyright had expired under whatever regime is in place at the time, anyone with such access could lawfully publish the work concerned, because by virtue of it now being in the public domain, you would not need permission from anyone to publish it. Access, then, is the key.

*this directive was subsequently repealed and replaced by Directive 2006/116/EEC of 12 December 2006; however the wording of most of the Articles, including Article 1, remained the same in both Directives.
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Post by Nick Cooper » Fri Aug 08, 2014 10:25 am

This publication right has always seemed a bit weird to me, if I'm understanding it right. It seems to be a "first come, first served" principle, in that whoever publishes a copyright-expired previously-unpublished work then gets another 25 years of sole copyright control/protection. This seems quite contrary to the spirit of works falling into the public domain, and open to abuse.

In the case of an author's estate holding copies of their unpublished work, they could print a limited run of 50 copies of the material and offer them for sale direct or through one shop in London. Wouldn't that fulfil the "available to the public" requirement? As you say, anyone with access to copies of the material couldpublish, so the 1 January of whatever year it is may see multiple publication attempts of the same material, drawn from different sources.

Obviously i would mean at least that the material was free to be quoted within the usual parameters by anyone lucky enough to get possess of have access to one of those 50 copies, but it would be another 25 years before anyone could exploit them they same way as the author's previously-published work.

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Post by AndyJ » Fri Aug 08, 2014 12:10 pm

Hi Nick,

I heard back from the IPO this morning. Not a terribly helpful reply, just saying that they intend to launch a consultation on the subject and implement the change 'in due course'.

As for you points, I think the rationale behind the publication right is to make it analogous to the copyright in a typographical arrangement of a published edition, that is to say to protect the investment of the publisher - somewhat unnecessary in these days of ebooks where the production investment is minimal.

As you say, offering just one copy for sale to the public would constitute publication, and this could occur anywhere in the world, providing that the country concerned was a signatory to the Berne Convention or the Universal Copyright Convention.

It is small but significant details such as this which demonstrate that copyright policy is now determined by the commercial interests of big business and estates of long dead authors, rather than the public interest in releasing works into the public domain. Even the recent changes concerning orphan works have only been brought in to satisfy commercial rather than cultural pressures.

The latest developments in the Sherlock Holmes case in the USA provide ample evidence of the business model of some literary estates.
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Post by Nick Cooper » Wed Aug 13, 2014 5:02 pm

Although luckily in the Sherlock Holmes case, the estate have (finally) not gotten away with it!

I think what is most of concern is that even if the rules for unpublished works are harmonised with published ones, the publication right offers a "lifeline" to literary estates to get another 25 years on unpublished works, as long as they get their first publication in first. If it was 25 years on top of the 50 years, it wouldn't be so bad, but 70 + 25 seems excessive.

It also seems that it is a potential recipe for even greater confusion. In the case of the writer I have in mind (and, no doubt, many others), there are countless unpublished letters, drafts, etc. held by a number of sources, but since that includes academic libraries, there are equally bound to be a large number of copies in circulation amongst researchers, some of whom - on top of the libraries themselves - may also be looking to publish at such point as those items enter the public domain. Subsequently, working out just who has published what and when is likely to be a bit of a nightmare.

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