2039 consultation

The Intellectual Property Office is currently consulting on reducing the copyright in unpublished works which are subject to the "2039 rule". Responses are due by 12 December.

Background

The Copyright, Designs, and Patents Act 1988 lays down a general rule of author's life+70 copyrights for material, whether published or unpublished. Prior to this, work was always copyrighted until a fixed period after publication, and so unpublished material could potentially retain copyright for much longer. To avoid cancelling these copyrights, the Act created a temporary provision - any unpublished material in copyright under the old system would remain in copyright for fifty years from the date the new legislation came into force.

This meant that any material which was unpublished in 1989, created by someone who died before 1969, is in copyright until 2039. This is true even if the author died centuries ago, or is completely unknown and untraceable. This has significant implications for large-scale archive digitisation programs, where tracing individual heirs is usually impractical.

An important note: this consultation does not cover photographs or films. The planned amendments will only affect literary works and, possibly, sound recordings.

Questions

The consultation asks several questions, most of which are geared towards cultural institutions physically holding "2039 material" and wondering what to do with it. These are of limited relevance to us and can probably be skipped.

Proposed responses (or notes towards them)

Q1. Do you own any works subject to the 2039 rule or hold any in your collection? If so, how many?

• Wikipedia works on the basis of US copyright law. As such, a number of works on Wikipedia may be subject to the 2039 rule by EU law, but not by US law.

Q2. If you hold copyright works in your collection, please describe the rights clearance process at your institution, along with cost estimates if possible.

Wikipedia requires copyrighted works to be released under a Creative Commons license before they can be used on Wikipedia and its sister projects. There are no cost implications involved: either the works can be used under a CC license, or they can't be used on Wikipedia.

Q3. Does the 2039 rule impact on this process, and if so, how?

The 2039 rule does not directly impact on Wikipedia's processes, since Wikipedia is governed by U.S. law. However, it does impede the work of UK-based editors who may not be able to legally use works that have not yet been deemed copyright-free under UK law, or UK works that have been deemed copyright-free but are not yet recognised as being in the public domain in the US through URAA.

Q4. If you are the copyright owner of a work subject to the 2039 rule, do you agree with this policy?

This does not help with international law such as with the U.S., so Wikimedia UK cannot agree with this policy.

Q5 - Having regard to the enabling power, do you agree with the Government’s proposed approach?

[ie - replacing the 2039 rule with the general life+70 rule immediately or after a short delay]

• Yes. The proposal to ensure that these are covered by the general rule in the existing legislation is sound and should be encouraged.

Q6 - If you consider that the copyright in affected works should expire a fixed period after commencement of the regulations, how long should that period be?

• Any transition period should be kept as short as possible. It is important to bear in mind that the 1988 Act effectively created a fifty-year transition period; we are now half-way through that period, and it has been found to be so problematic we are consulting on how best to abolish it! In connection with Q8 below, the potential interaction of a delayed expiry with the publication right should be considered carefully, to avoid creating substantially longer copyright terms for this material.

Q7 - Are you aware of any other works subject to the 2039 rule because of the 1775 Act, and have you any objection to abolishing these rights?

We are not aware of any other '1775 copyrights' and, as per the answer to Q5, fully endorse standardising these.

Q8 - Do you consider that this policy would encourage or facilitate the publication of previously unpublished works?

• It is possible that this policy will cause a small "land-rush" of publications immediately after expiry, as this will allow a clear copyright to be established via the publication right. We saw a recent analogy to this with the expiry of the copyright in James Joyce's writing, where a previously unpublished MS was deliberately held back until the life+70 copyright had expired, and then published with great urgency in order to claim priority.

• Any such rush is likely to have little effect from the point of view of reusers or the public - with a 25 year publication right, the works will remain in copyright until circa 2039 in any case (assuming the policy takes effect in 2015). However, it may prove contentious for the current rightsholders of 2039 work, who may not be the first to publish it after the transition and so lose their exclusive right to it. (cf/ the Joyce case, above)

Q9 - Have you any plans to publish previously unpublished works following the implementation of this policy? If so, how many?

• Any unpublished works that are released into the public domain, both in the UK and the US, as a result of this policy, would be welcomed as they would benefit the public's knowledge.

Q10 - Are you affected by or aware of a situation where copyright works have been deposited with a third party on the belief that the 2039 provisions would remain in place to protect the work, and if so what is the likely impact to you of the policy?

Q11 - Do you consider there to be any issues involving privacy or confidentiality in the content of works which were previously protected by copyright until 2039 but fall out of copyright as a result of this policy?

Q12 - Do you consider that transitional provisions are required in respect of works subject to the 2039 rule but published after 1989?

• While simplicity of the law is a benefit in itself, the fact that rightsholders had published these works indicates a positive attempt to make them available, and they had a reasonable anticipation that they did so with some form of copyright protection. It would seem to be reasonable to treat these as though the general rule and the publication right had been in force at the time - a work that would have been copyright-expired under the general rule when published in 1995 would be deemed to have gained a 25-year publication right, expiring at the end of 2020. This approach appears both equitable and simple, within the framework of the existing law.

• [Whether the publication right is a positive thing in and of itself is another question, but one outside the scope of this consultation]

Q13 - Should these regulations apply to unpublished sound recordings? (Please give reasons for your answer.)

• We feel the regulations should apply to sound recordings (and, indeed, would have appreciated them being extended to photographic and artistic material). As is a recurrent theme in this consultation, making the law clear and consistent is valuable and important and should be done unless there is a pressing reason not to.

• We would also note that the current commercial exploitation of "unpublished" photographs is frequently done on very shaky legal ground, with picture libraries agressively defending their claims over material that is unlikely to be theirs to exploit. This has had substantial detrimental effects on the cultural and academic sectors, and an economic impact on the publishing industry. (See, for example, a good discussion of this topic in Susan Bielstein's Permissions: a survival guide, 2006). Such activity is unproductive and should be discouraged; endorsing extending it to a new field sends a message at odds with the general approach of the proposed policy.

Q14 - Are you the owner of relevant sound recordings, or the copyright in them? If so, are you able to share information about the present state of the market for unpublished sound recordings?

Q15 - Do you agree that the likely impact of this policy in respect of sound recordings is minimal (whether as a benefit or a cost)?

We agree with this assessment.