Unpublished Letters

[cannonking]

I am aware that unpublished works were originally held to have copyright in perpetuity until recently; when 2039 was specified as an expiry date for the older materials. I am also aware that copyright passes to the descendants of a person whether specified in the will or not., My query is consequently this; to which descendant does it pass if unspecified? Does it go to the oldest child, and then their oldest child, ad infinitum? Or is it equally shared by absolutely every descendant?

[AndyJ]

Hi cannonking,

What the Copyright Designs and Patents Act says is

93 Copyright to pass under will with unpublished work.

Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—

• (a) an original document or other material thing recording or embodying a literary, dramatic, musical or artistic work which was not published before the death of the testator, or
  
  (b) an original material thing containing a sound recording or film which 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 to it, 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.

From this it can be seen that whoever inherits the physical object (manuscript, painting etc) also inherits the copyright, unless the testator specifies some other arrangement in their will. However if the physical object has already been sold or otherwise transferred before the author's death, the intangible copyright would be treated as a bit of physical property, but in this instance if a will split the estate equally between a number of benficiaries, then the copyright ownership would also be split among them all. However if there were a number of specific bequests, but only one main beneficiary of the residue of the estate, that beneficiary would inherit the copyright.

For a case where there is no will the Act says

90 Assignment and licences.

(1) Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
[...]
(my added emphasis)

This means that the normal intestacy rules would apply. As in the case where there was a will, copyright would transfer with the physical object (painting etc). But where just the copyright itself was at issue, the way the intestacy rules operate usually means that copyright ownership would be split between all the beneficiaries. Bear in mind that different rules aplly in England and Wales to those that apply in Scotland or Northern Ireland. What I have outlined here follows the rules for England and Wales.

In theory, using the example of unpublished letters which you mention, if a quantity of letters was split, say, between two sons of the author, each son could own the copyright in those letters which he inherited, but have no claim to the copright in the other brother's letters.

[cannonking]

Hmmm... So if copyright is inherited along with possession; where does the copyright go once the documents have been given away (say, for tax relief), and we've moved on a couple of generations?

Say my great-grandfather left my grandfather the documents in his will (and not to his three siblings), my grandfather then left his estate to his wife, who donated the documents but not the copyright. She then gives her estate to her one son; who marries and subsequently leaves his estate to his wife upon death. I assume that wife then holds copyright, even though she never received ownership of the documents?

Untangling these things is damnably tricky!

[AndyJ]

Yes, where just the copyright itself is at issue, it will cascade down either through actual bequests or as a consequence of being a part of the overall estate. For the sake of simplicity the best course is to follow the route via the main beneficiaries of wills. Of course after a certain period of time it is quite likely that no-one is aware that they actually own the copyright. In such circumstances it might be advisible to get an orphan works licence from the IPO if you wish to publish. This has the added bonus of applying equally to published and unpublished works.

[cannonking]

I see. That clears that up then. Many thanks on that; I'm working with a family right now in the above described situation to try and figure out which of them actually possesses the copyright. Time to start digging up the wills!