Use it or lose it? The Scottish Law Commission reflects on copyright and limitation periods

The 1709 Blog has just heard news from the Scottish academic and amiable IP personality Hector MacQueen that the Scottish Law Commission has just published its Discussion Paper No 144 entitled "Prescription and Title to Moveable Property". This doesn't sound much like anything to do with copyright, but let Hector take up the story:

"In Part 11 it considers the possibility raised amongst many other points in Fisher v Brooker [2009] UKHL 41 [the "Whiter Shade of Pale" case, potted by the 1709 Blog here], namely that under Scots law's Prescription and Limitation (Scotland) Act 1973 non-use of a copyright work for 20 years could lead to the right-holder being unable to enforce the right and indeed losing it altogether. While Lord Hope in Fisher thought this could not be right, there is no provision in the 1973 Act to make the point directly. The Discussion Paper discusses the implications for the problem of orphan works, and suggests that the 1973 Act should have added to it a provision similar to section 39 of the Limitation Act 1980 in England, under which limitation rules do not apply to any right for which a fixed time period is provided by any other enactment, whether passed before or after the coming into force of the enactment in question.
This would apply to the copyright legislation and prevent any possible difference between Scotland and England in the application of copyright law.

One of the difficulties for the Commission is that, so far as it can tell, this suggestion could only be put into effect by the Westminster Parliament. This is because it seems that the amendment would apply only to intellectual property legislation, which is not devolved to the Scottish Parliament under the Scotland Act 1998. One of the things the Commission would like to know is whether section 39 of the Limitation Act 1980 has any application beyond intellectual property legislation. If it does, it might then be possible to say that the Commission's suggestion did not apply only to intellectual property and hence could be legislated upon by the Scottish Parliament. Para 1.12 of the Discussion Paper briefly explains the issues".

Hector adds, and we agree, that it would be very helpful if any of our readers who are expert in English law generally could point the Commission in any relevant direction on this.