Crown Copyright

[cannonking]

Okay. According to my understanding, unpublished literary material remains in copyright until 2039. That being said, when does what a person does technically qualify as Crown Copyright? Take the following cases:-

1. A Government Minister pencilling off a note relating to the business of his department to another state servant (say, a naval officer).
2. A Government official (say, a civil servant, minister, whatever) writes a letter to another state servant largely upon business related matters (say, the passing of a bill, drawing up of estimates, etc), but then throws in one or two personal lines (how's the wife, are you going to that dinner, etc).
3. A Government official writes a letter to another state servant which discusses contemporary goings-ons - possibly seeking advice, making references to other state servants, and so on - but in a more informal manner/tone.
4. A Government official writes on official letterheaded paper a relatively personal letter to another state servant.

And so on.

I look a lot at old correspondence, and I'm struggling to ascertain exactly what would qualify as being Crown Copyright (material written by servants of state during the course of duty) from personal unpublished copyright. There seems to be no real identifiable line at which one transitions into the other.

[AndyJ]

Hi cannonking,

I'm not sure if you intended to link unpublished literary works generally and Crown copyright in the way you did in your second sentence. They are of course treated separately as far as the term of copyright protection is concerned. The details for Crown copyright are to be found in Section 163 of the Copyright Designs and Patents Act 1988, which says the following:

163 Crown copyright.

(1) Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties—

• (a) the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and
  
  (b) Her Majesty is the first owner of any copyright in the work.

(2) Copyright in such a work is referred to in this Part as “Crown copyright”, notwithstanding that it may be, or have been, assigned to another person.

(3) Crown copyright in a literary, dramatic, musical or artistic work continues to subsist—

• (a) until the end of the period of 125 years from the end of the calendar year in which the work was made, or
  
  (b) if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.

(4) In the case of a work of joint authorship where one or more but not all of the authors are persons falling within subsection (1), this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

(5) Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisions of this Part apply in relation to Crown copyright as to other copyright.

(6)This section does not apply to a work if, or to the extent that, Parliamentary copyright subsists in the work (see sections 165 to 166D).

This section helpfully answers your questions reasonably clearly. Examples 1, 2 and 3 fall within Crown copyright because the writer is a Crown servant and the work has been created in the course of the person's duties. The 4th case probably wouldn't attract Crown copyright due to the personal nature of the content.

[cannonking]

'Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties'.
'
To me, this is the nub of it. I read a lot of old correspondence by 'servants of the Crown', but they have a really awkward way of intermingling the personal and public as it were. So it makes it really difficult for me to ascertain what constitutes 'in the course of his duties' and what does not. I had a brief chat with some people at the British Library about it, and they basically threw their hands up and said 'It's really bloody awkward and you have to do it case by case'. So I essentially was hoping someone here might be able to pin it down to a more precise guideline.

The best I've been able to come up with is to try and ascertain whether the letter would still have been written if the author wasn't a postholder under the Crown, or if their position makes absolutely no relevance to the letter. But even that's dicey, as people can write letters unrelated to their current post but still related to past posts and more general responsibilities.

To take an example I literally just transcribed, I've got a letter from M.P. and past First Lord of the Admiralty George Goschen writing to the current First Lord Tweedmouth in 1906 with some advice about the service. Now Goschen is still a servant of the crown (he's an M.P.), but his letter has nothing to do with his current direct responsibilities/position in that regard.It's all about contemporary naval matters however, and he's literally reminiscing about stuff that happened when he was First Lord. Yet... it's still a personal letter, not being sent in the course of his technical duties as a crown servant. But....surely he has a general responsibility/course of duty to the state as an M.P.?

Does it qualify or not? I honestly can't tell. This is the sort of thing I keep running into, and it's a royal pain in the arse.

Also (on a related but separate note), does being nobility count as being a servant of the Crown? Whether they chose to use it or not, most had a seat in the House of Lords. I believe there are responsibilities/duties to the crown codified in with the rank. Would that qualify to start transitioning some of their material to being crown copyright in some contexts?

[AndyJ]

Hi cannonking,

To answer your last question first, members of parliament and the nobility, whether or not they are actually current or past members of the House of Lords, are not Crown servants, therefore their writings would not be subject to Crown copyright unless they held an office of State, ie were a Minister, Secretary of State or similar office, at the relevant time. If they were writing in some official capacity as an officer of either House of Parliament, their work might be subject to Parliamentary copyright (see Sections 165 and 167 CDPA). It is generally accepted that an MP writing to, for instance, one of his/her constituents does not attract parliamentary copyright, although normal copyright will usually apply.

On the wider issue, of how to deal with older correspondence of the sort you mention, I would suggest contacting the Comptroller of Her Majesty's Stationery Office (aka the Office of Public Sector Information - part of the National Archives) for permission to copy / quote the documents you are interested in. Given their age, I wouldn't imagine there will be any problem. The only factor which might prevent a free licence being issued is if you wished to use the extracts for some commercial purpose. 'Commercial' in this context probably wouldn't include using quotes or extracts in a book such as a biography or general history.