Manuscripts

[Jason210]

Hi

I recently bought an unpublished diary / manuscript that contains and interesting account of a voyage on a ship. The manuscript was written before 1910, Assuming the author passed away more than 70 years ago and copyright does not apply, would there be any other legal concerns that apply if I wished to publish excerpts of the manuscript in a book?

Jason

[AndyJ]

Hi Jason,

An unpublished work created before the 1988 Copyright Designs and Patents Act (CDPA) came into force falls into a special category where, technically speaking, it is protected by copyright (see section 2(1) of the Copyright Act 1956) but the actual copyright term cannot begin until the work is lawfully published. This means that in most cases where the current owner of the copyright is either unknown or has died without passing on the copyright to an heir, the work would stay in perpetual copyright, but without much chance of anyone being around to enforce the copyright. This anonmaly was addressed by the subsequent legislation which said that all such unpublished works would enter the public domain 50 years from the date the CDPA came into force (which was 1 August 1989), meaning that the end date for all unpublished works created before 1 August 1989, will be 31 December 2039.

Thus you cannot assume that the diary is out of copyright. You would therefore need permission from whoever is the current owner of the copyright, most probably an heir of the diary's author. Finding that person may not be easy, and will be be near impossible if the author was anonymous. Unfortunately, the fact that you legally own the diary/manuscript does not mean that you also own the copyright.

What is more, you cannot rely on the exception for the purposes of quotation (see section 30 (1ZA) CDPA) to get around this problem as that exception requires that the work being quoted has previously been made available to the public.

However, if the author is anonymous or the present day owner of the copyright cannot be found, you should be able to obtain an orphan works licence from the UK Intellectual Property Office which would allow you to publish the work and would indemnify you against a claim should the copyright owner subsequently come forward and claim the copyright. There is a fee for this which will be based, in part, on the likely print run of your book. The application process requires you to conduct a diligent search for the current day owner of the copyright. More details on how this works here.

[Jason210]

Thank you for your help. At the rate I'm writing this book, 2039 sounds reasonable!

Does it matter if the manuscript is of US origin?

[AndyJ]

Does it matter if the manuscript is of US origin?

That makes a difference certainly. If you take another look at the link to section 2(1) of the 1956 Copyright Act I mentioned previously, it says the following

Copyright shall subsist, subject to the provisions of this Act, in every original literary, dramatic or musical work which is unpublished, and of which the author was a qualified person at the time when the work was made, or, if the making of the work extended over a period, was a qualified person for a substantial part of that period.

Here a qualified person means a British subject or a person who was residing in the UK at the time the work was made. So if the author of your diary was neither British nor based in the UK at the time he/she wrote the work, that part of the 1956 Copyright Act (and its predecessor, the 1911 Copyright Act) would not apply.

There was a 1891 bi-lateral treaty between the USA and Britain (in the USA it was known as the Chase Act) which required the two countries to provide reciprocal protection for each other's copyright works but it only applied to published works, which in the case of British works intended for the American market, it meant that they had to be printed the USA. (This was a protectionist move in order to support the US printing industry.) Thus your unpublished work would not have been covered by the Chase Act and so Britain's copyright law would not have applied to it, especially as US copyright law did not itself protect any domestic unpublished work unless it was registered with the Library of Congress.

[Nick Cooper]

I believe that US copyright law now protects unpublished works with a 70 year posthumous term (wish we could say the same of the UK!), so if the author of the diary can be identified, and they died before 1952, it will be public domain there.