The government has recently announced that it will not reduce the duration of copyright protection in certain unpublished works without further consideration. A Government review had proposed changes
The government has recently announced that it will not reduce the duration of copyright protection in certain unpublished works without further consideration. A Government review had proposed changes that would see the term of protection in certain unpublished works reduced from the end of the year 2039 to the author’s lifetime plus 70 years. However, in its published Response to the 2014 Consultation on the Duration of Copyright in certain unpublished works, the Government has said that, because of copyright owners raising “legitimate concerns” about the policy and, in particular, the impact it would have on the commercial exploitation of works, it will halt any changes for further consideration.
Background
Section 170(2) of the Copyright, Designs and Patents Act 1988 gives the Government the power to reduce the duration of copyright in certain very old unpublished works, which currently remain protected by copyright until the year 2039, regardless of their age. The Government calls this the "2039 rule". The underlying purpose of this power was to encourage the publication of often historically and culturally significant works but with what was considered to be a suitable period of copyright protection. In October 2014, the Government launched a Consultation to hear views on using this power and sought evidence on the potential impact of the proposals.
In its response to the Consultation, the Government observed that, although many respondents were supportive of the Government’s proposed measures, a number also raised concerns about the policy and the potential negative impact on owners of copyright works. The Government also noted that a number of recent reforms (eg the orphan works licensing scheme – see here) have already made access and use of copyright protected works easier. For these reasons, the Government has decided not to take any action in this area for now and has expressed its intention to seek further views from affected parties.
Observations
A number of observations surfaced from the 43 museums, other institutions and individuals who responded to the consultation including:
Against change
For change
Unpublished sound recordings
Observations were also made in response to the question whether the proposed policy changes should apply to unpublished sound recordings, including:
For change
Against change
Background
Section 170(2) of the Copyright, Designs and Patents Act 1988 gives the Government the power to reduce the duration of copyright in certain very old unpublished works, which currently remain protected by copyright until the year 2039, regardless of their age. The Government calls this the "2039 rule". The underlying purpose of this power was to encourage the publication of often historically and culturally significant works but with what was considered to be a suitable period of copyright protection. In October 2014, the Government launched a Consultation to hear views on using this power and sought evidence on the potential impact of the proposals.
In its response to the Consultation, the Government observed that, although many respondents were supportive of the Government’s proposed measures, a number also raised concerns about the policy and the potential negative impact on owners of copyright works. The Government also noted that a number of recent reforms (eg the orphan works licensing scheme – see here) have already made access and use of copyright protected works easier. For these reasons, the Government has decided not to take any action in this area for now and has expressed its intention to seek further views from affected parties.
Observations
A number of observations surfaced from the 43 museums, other institutions and individuals who responded to the consultation including:
Against change
- It would effectively amount to a confiscation and deprivation of property which may not be permitted on human rights grounds.
- Works protected by the 2039 rule represent a significant source of income for some rights holders and the change could have a negative impact on trusts that manage the rights of works created by deceased authors.
- There is not enough evidence to justify the policy at this time – it is not known exactly how many works currently protected by the 2039 rule even exist.
- It may result in a reduction in publication because there would be no financial incentive.
- It may result in rushed and poorly-edited publications.
- It is worth waiting to see how the recently introduced orphan works licensing scheme plays out in practice before making further changes in this area.
- It could impact on the privacy of the author if the work was never intended to be published.
For change
- The process of rights clearance is disproportionately expensive and time-consuming so many respondents adopt a risk-based approach.
- The provisions for identifying whether a work falls within the 2039 rule are very complex.
- The 2039 rule provides no meaningful benefit.
- It would bring copyright duration in the UK in line with the rest of the EU.
- It would be of significant benefit to the public as it would result in the publication of previously unpublished works.
Unpublished sound recordings
Observations were also made in response to the question whether the proposed policy changes should apply to unpublished sound recordings, including:
For change
- It would provide greater consistency across copyright law.
Against change
- It may impact on 'session funds' where musicians receive royalty payments.
- Without financial incentive to publish, record companies may not publish at all