Copyright expiry question

[EJParsons]

Hi, I'm new here. I've been doing some research to determine whether or not some old illustrations are in the public domain.
Some facts:
Author died over 70 years ago
Illustrations created around 1906
Illustrations published in 1977 in UK

My initial thought was that the images would be in the public domain; however, the dare of publication is giving me concern.
Can anyone shed some light on this, please? My head is hurting
Many thanks,
Emma

[AndyJ]

Hi Emma and welcome,

Yes, you have highlighted a quirk of old copyright law which still lingers on today: the issue of unpublished works. Until the Copyright Designs and Patents Act of 1988, works which were subject to copyright were divided into two categories of protection covering published and unpublished works. As you say, it's very complicated. However I offer two answers, the short and the long (the answer is the same in both cases, it's just the second answer provides the complete explanation for why the short ansawer is correct!). The short answer is that since the artist died more than 70 years ago, the illustrations are now out of copyright.

The long answer is:

Published works.The published work was subject to a copyright term of the lifetime of the author of the work plus (then) 50 years from the end of the year the author died. If a work was still protected by copyright on 1 July 1995, this post mortem period was extended to 70 years by a piece of EU legislation in 1995.

Unpublished Works. These remained protected until they were first published 'with authorisation', and the copyright term would then continue to run for the remainder of the author's lifetime plus the 50 years thereafter. However if the work was not published until after the author's death, the 50 (later 70) year post mortem part of the term did not start until the end of the year of publication. This applied to all works, except photographs, engravings and anonymous works, created before 1 August 1989 which is when the 1988 Act came into force. Thus any unpublished work (less the exceptions noted above) created before that date could, in theory be subject to perpetual copyright protection if there was no-one around who could 'authorise' its publication. Parliament recognised this anomaly and incorporated a clause into the 1988 CDPA which automatically ended the copyright in such works 50 years after the end of the year the Act came into force, so on the 1 January 2040, unless of course the work had been published with authorisation in the meantime.

I've mentioned authorisation a couple of times. This means that the current owner of the copyright in the work has agreed to the publication. Usually this will be an heir of the author, although if the author donated his unpublished works to a library or archive, the copyright would be deemed to have passed to that institution along with the works themselves, unless something else was specified in the author's will. Clearly the longer the period after the author's death, the greater the uncertainty about who might be the current owner.

Given that the artist in this case died before the middle of the last century it is possible that these illustrations were engravings. This category of artistic work has remained undefined since the 1862 Fine Art Copyright Act which first gave such works copyright protection, but since you didn't specifically mention if they were engravings, I have assumed they were not.

As the date of publication was before the 1988 CDPA came into force, we need to check what Schedule 1 of that Act says about the provisions Parliament intended to apply to works already in existence when the Act came into force. We find the details set out in paragraph 12 of the Schedule which reads as follows:

Duration of copyright in existing works

12(1) The following provisions have effect with respect to the duration of copyright in existing works.

The question which provision applies to a work shall be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 [Copyright] Act have the same meaning as in that Act.

(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act—

(a) literary, dramatic or musical works in relation to which the period of 50 years mentioned in the proviso to section 2(3) of the 1956 Act (duration of copyright in works made available to the public after the death of the author) has begun to run;

(b) engravings in relation to which the period of 50 years mentioned in the proviso to section 3(4) of the 1956 Act (duration of copyright in works published after the death of the author) has begun to run;

(c) published photographs and photographs taken before 1st June 1957;

(d) published sound recordings and sound recordings made before 1st June 1957;

(e) published films and films falling within section 13(3)(a) of the 1956 Act (films registered under former enactments relating to registration of films).

(3) Copyright in anonymous or pseudonymous literary, dramatic, musical or artistic works (other than photographs) continues to subsist—

(a) if the work is published, until the date on which it would have expired in accordance with the 1956 Act, and

(b) if the work is unpublished, until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force or, if during that period the work is first made available to the public within the meaning of section 12(3) (duration of copyright in works of unknown authorship), the date on which copyright expires in accordance with that provision;

unless, in any case, the identity of the author becomes known before that date, in which case section 12(2) applies (general rule: life of the author plus 70).

(4) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) literary, dramatic and musical works of which the author has died and in relation to which none of the acts mentioned in paragraphs (a) to (e) of the proviso to section 2(3) of the 1956 Act has been done;

(b) unpublished engravings of which the author has died;

(c) unpublished photographs taken on or after 1st June 1957.

(5) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) unpublished sound recordings made on or after 1st June 1957;

(b) films not falling within sub-paragraph (2)(e) above,

unless the recording or film is published before the end of that period in which case copyright in it shall continue until the end of the period of 50 years from the end of the calendar year in which the recording or film is published.

(6) Copyright in any other description of existing work continues to subsist until the date on which copyright in that description of work expires in accordance with sections 12 to 15 of this Act.

(7) The above provisions do not apply to works subject to Crown or Parliamentary copyright.

As you can see sub paragraphs (2) and (4) omit artistic works, and as I have already assumed we are not talking about engravings, the only category which applies to these illustrations is sub-paragraph (6). In other words "Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies ..." (Section 12 CDPA)