Orphan works and unpublished works - unloved or much loved? Are moves being adopted to foster better care?

The National Library of Scotland has joined a campaign to "free history from copyright laws that are leaving valuable pieces of cultural heritage unseen." What's this all about then? Well, it's not all about orphan works (more o that later on) and it's set against the backdrop of the centenary of the beginning of the First World War -  and criticies the provisons that certain unpublished pieces are protected under the 1988 Copyright, Designs and Patents Act until 2039.  This applies to all works created, but not published before 1 August 1989, where the author died before 1 January 1969. CILIP (the Chartered Institute of Library and Information Professionals) launched its campaign to urge the reform of “out-dated” and “inconsistent” copyright laws this week preventing many British institutions from showing certain works from World War One in centenary exhibits of the Great War. The National Library has now posted the blank letter below on its Facebook page, saying “there would have been a letter from a First World War soldier in this display (image shown). CILIP wants to reduce the term of copyright protection in unpublished text-based works to the author's lifetime plus 70 years  (rather than the set terms of 70 years from 1969).  Many of the soldiers of course perished in the 1914-18 War. The Intellectual Property Office said the government will shortly publish a consultation on reducing the duration of copyright on those works. There is a really good paper on this, andthat's the CREATe website and written by Victoria Stobo (University of Glasgow) here.

That said, there has of course been developments with orphan works (works which are protected by copyright but whose creators (or rather owners) cannot be identified or found)  - and as Eleonora reported just four days ago, the new orphan works licensing scheme set up pursuant to s77 of the Enterprise and Regulatory Reform Act 2013 has launched. This means that it is now possible to apply for a licence to use "at least 91 million culturally valuable creative works - including diaries, photographs, oral history recordings and documentary films" with  UK IP Minister, Baroness Neville Rolfe, saying: "The UK's trailblazing orphan works licensing scheme enables access to a wider range of our culturally important works. The scheme has been designed to protect right holders and give them a proper return if they reappear, while ensuring that citizens and consumers will be able to access more of our country's great creations, more easily." The UK scheme will be administered by the UK Intellectual Property Office.

The Department for Business, Innovation and Skills has now given several examples of how the new scheme could work:

- The Tate Gallery would be able to use unpublished literary works of artist Alfred Wallis, who died in 1942 with no surviving family.

- The Museum of Childhood has tried and failed to trace the owners of photos taken for toy manufacturer Lines Brothers, which went bankrupt in 1971, while the photographic studio is also thought to have closed.

- The Museum of the Mind wants to use creative works by patients of Bethlem Royal Hospital, which were often made anonymously.

- The National Records of Scotland could use unpublished historical maps and plans where the author's name may be known but their families cannot be found.

Not that everyone is that happy - last year, photographers and illustrators launched a petition complaining that their work could be used online by others providing they "have made a small effort to search for the original owner" (a criticism of the requirement for potential users of orphan works to undertake  a "diligent" [reasonable] search within certain defined parameters). With 28,756 signatories the e-petition said "A new legislation that has been rushed through parliament with no thought has now reached royal assent. This legislation means that photographers and illustrators alike will see their artworks legally taken and used for another's own gain." With more than 10,000 signing up the Government responded and that can be found here . 

More here on orphan works licensing from Tom Ohta (Bristows) and more on FREE OUR HISTORY - REFORM COPYRIGHT here. Campaign supporters include the National Library of Scotland, the Imperial War Museums, the University of Leeds and the Chartered Institute of Library & Information Professionals.  

Dead author, old manuscripts, live issues: a reader writes

This weblog has received an inquiry from a perplexed person who is trying to establish the legal status of some old manuscripts in respect of which some curiously complex problems arise  There are two questions here:

"(1) My first question relates to the statement in the British Library's Help for Researchers: Manuscripts Collections: Copyright guidance that 

"Manuscripts with an author, created and published before 1989, but after the author's death, remain in copyright until the year published + 50 years".

Given a situation where an author died (say) in 1900, leaving unpublished letters, the copyright of which is now owned by his/her literary estate, does this mean that if a third party published the text of or an image of one of these letters in (say) 1905, but was not given permission to publish the document by the literary estate, could that publisher really claim copyright of the text of the letter for 50 years from the time of publication? If so, then the copyright (in this example) will now have expired, so is the text of the letter now public domain?

A slightly different example:- Given a situation where an author died (say) in 1900, leaving unpublished letters the copyright of which is now owned by his/her literary estate, does this mean that, if a third party published the text of or an image of one of these letters in (say) 1905 and was given permission to publish it, but not own the copyright of it, by the literary estate, could the publisher really claim copyright of the text of the letter for 50 years from the time of publication? If so, then the copyright will have expired, so is the text of the letter now public domain?

It would seem most 'unjust' if a third party could publish a copyright-protected unpublished manuscript without permission and then gain the copyright of it for 50 years, but perhaps this is what the law says!! This could even mean that the original copyright owner is prevented from publishing a work, e.g. if an unpublished manuscript was published in 1988, it would be copyright of the publisher until 2038.

I have searched the Web for an answer to this, but to no avail. It is important for the collection I have in mind, where the author's letters were published after his death - and some of these were even published several times by some well-known recipients of them.

(2) The following guidance cited on the same website seems to suggest that no-one would own the copyright of an unpublished copyright-protected work by the author whose manuscripts I'm holding and which was published after 1989: 

"Manuscripts with an author who died before 1989 but which were published after 1989 remain in copyright until the end of the year in which the author died + 70 years".

Does this mean that my author's copyright of a work would expire as soon as the work was published (he died in 1913)? Would the publisher have any copyright of the work (apart from the typographical arrangement of it), or does the work immediately become public domain on publication? If there is still copyright associated with the work, could it be retained by the Literary Estate of the author if the Estate stipulated that publication of a work was only on the condition that the copyright was owned by the Literary Estate?

Given the above I am not sure how to proceed - any ideas would be very welcome".

Well, readers, here's a challenge for you! Please feel free to post your guidance below, and/or email it to Annette here.

Kazakhstan takes Steppes to prevent MS misappropriation

Kazakh Steppe (small extract)

News travels fast from the US and other hi-tech instant message jurisdictions, but it reaches the 1709 Blog in a more stately fashion when it comes from the Kazakh Steppe. Still, better late than never!  On 14 October of last year the Kazakhstan Ministry of Justice issued Order No. 279 regulating the protection of unpublished works, specifically the delivery, acceptance and storage of unpublished manuscripts.  A news item from Petosevic reports that

According to paragraph 3 of the Order, the Order entered into force ten calendar days after its first publication, which was on 12 January 2011 in the national newspaper Kazakhstanskaya Pravda. 

The new regulations were drafted in accordance with the Kazakhstan Law on Copyright and Related Rights and aim to prevent misuse and misappropriation of unpublished works. 

The Justice Ministry has appointed the Committee for Intellectual Property Rights as the authority responsible for protection of unpublished works.

How refreshing, when everyone else seems to be worrying out file-sharing and pursuing the Golden Grail of a copyright-proof business model for the digital age, that here at least is an issue that depends more on matters of principle than in trends of technology.  But what might have prompted this legislation at this particular time? A severe outbreak of manuscript-rustling?

Source: Kazakhstan PTO, via "Kazakhstan New Regulations on Protection of Unpublished Works", Petosevic