As a result of the transitional provisions of the Copyright, Designs and Patents Act 1988 (CDPA), some very old unpublished works benefit from copyright protection until 2039, even though their authors have not lived for hundreds of years.
The 2039 rule was enacted because under the previous copyright law – although copyright expired 70-years from death of the author for works published during the author’s life and a fixed term of protection given if published post-death – there was no copyright expiry for works that remain unpublished. This was changed in 1989 (when the CDPA came into force) by providing a further 50-year term – to 2039, when copyright will expire in all such unpublished works (hereinafter, the “2039 rule”).
This protection is provided regardless of the age of the work in question. Institutions such as libraries, museums and archives have criticized the 2039 rule on the grounds that it stifles the accessibility of works which are of historical or cultural importance to the public.
By way of example, nearly all of the 1.75 million works within the Imperial War Museum are unpublished and that many (if not most) will be subject to the 2039 rule. See Government response to the consultation on reducing the duration of copyright in certain unpublished works (released 29 January 2015) (hereinafter, the “Government Response”).
UK consultation response
In response to these concerns, the government launched a consultation in October 2014 on the proposal to reduce the duration of protection for unpublished 2039 works. The consultation sought views and evidence on the potential impact of the proposal. In its response, the government decided not to take any action to reduce the 2039 rule at this stage.
The respondents’ key arguments for and against the proposal are summarized below. See Government Response.
The main criticism of the 2039 rule is that it provides copyright protection for very old works, i.e., medieval manuscripts, which could be of historical or cultural importance. Although not all respondents were opposed to the Government’s proposals as it would ease the burden of authors and publishers in clearing rights, especially from historical materials. See id. at 4.
Several respondents noted concerns about adverse revenue consequences should the 2039 rule be removed. For example, the Vaughan Williams Charitable Trust utilizes revenues from licensing use of the composer’s work to invest in additional works by Williams. The Trust argued the removal of 2039 rule would negatively impact the “revenue steam of the trust” because many of Williams’ works would enter the public domain 11 years earlier than anticipated. Respondents indicated that the rights clearance process for these works can be very time-consuming, expensive and often unsuccessful. It should also be noted that there are huge numbers of unpublished works currently benefitting from 2039 protection.
As the rights clearance process is often too burdensome, the works remain unpublished. On one hand, many respondents submitted that the removal of the 2039 rule would result in the publication of culturally important unpublished works, which would be of significant benefit to UK cultural heritage institutions. While on the other, some rights holders put forward that the removal of financial incentives for publication would mean a reduction of works published. Id. at 6.
Respondents not in favour of changing the rule argued that the removal of the 2039 rule would constitute a confiscation of property rights – so it would amount to the deprivation of property and therefore infringe human rights. Id. at 4.
It was also argued that the removal of the 2039 rule would result in there being a race to publish works because the first person to publish a work where copyright has expired in an unpublished work obtains a 25-year publication right. This is an exclusivity right and is, in essence, the equivalent of copyright. The fear is that publication would be done in hurried and substandard editions in order to secure the 25-year publication right. It was argued that this “could come at the expense of other publishers who had invested time and money in producing a better edition of the work.” Id. at 6.
Unpublished works are not alone. Sound recordings are also within the scope of the 2039 rule. Libraries and archives believe the nature and age of the majority of the unpublished sound recordings would have a minimal negative impact on rights holders while the music industry holds fast that the economic impact would be vast with the removal of the 2039 rule. Id. at 11. In its response, the British Copyright Council opined that if the 2039 rule is “revoked it could lead to a position where near-identical sound recordings are in competition, one in copyright and one not.” See BCC Response at Q13.
In consideration of the above arguments, the government has chosen not to change the current law for the time being. Whilst it remains of the view that accessibility to works protected by the 2039 rule must be improved, it explained that legislation at this stage is not appropriate. Before the introduction of such legislation, the government decided that it must continue to consider the concerns of the rights holders.
In the interim, the Government
- Introduced the Orphan Works Licensing System (October 2014), alongside the EU Orphan Works Directive, which provides institutions the “opportunity to reproduce and increase access to a wide range of culturally important works, including many unpublished works.” Government Response at 11; see also Directive 2012/28/EU of the European Parliament and the Council of 25 October 2012 on certain permitted uses of orphan works.
- Provided exceptions to copyright “allowing libraries, archives and museums to conduct a range of activities, including archiving and preservation, as well as offering access to copyright works on their premises.”
Ultimately, the Government will continue to explore (1) the concerns of the respondents and (2) the direction of any future work in this area.
Mr. Justice Arnold
The Seven Pillars of Wisdom Trust
* Ben Mellett’s practice is supervised by principals of the firm admitted in the United Kingdom.