Copyright Protection of Unpublished Works in the Common Law World

Patrick Masiyakurima

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509916986
• Edition: 1
• Topic: Law
• Subtopic: Copyright Law
• Index: Law

This book discusses copyright protection of unpublished works including letters, diaries, manuscripts, photographs, memoranda, sketches, private journals, government records and drafts intended for future publication. Under contemporary British copyright law, unpublished works are protected by the Copyright, Designs and Patents Act 1988. In addition, the Berne Convention anticipates that unpublished works shall receive protection. While unpublished works are, in general, assimilated to the treatment of published ones, notable differences in the strength of protection afforded to published and unpublished works remain. It is the case that contemporary British copyright law confers stronger and longer protection on unpublished works. For instance, the unpublished status of a work assumes pivotal significance in the framework for determining: qualification for copyright protection, the extent of copyright protection, exceptions to copyright infringement and the remedies for copyright infringement. The principal aim of the book is to consider whether copyright in unpublished works is justified; a task which is prosecuted from historical, normative and legal perspectives. Although the book's primary focus is the treatment of unpublished works in Britain, it also relies extensively on materials from other Common Law jurisdictions. The book contributes to the understanding of why cumulative protection of unpublished works emerged, and how exceptions to rights in unpublished works evolved. Moreover, the analysis deployed in the book aids the task of applying the law to 'new circumstances'.

1

Introduction

The topic of this book is copyright in unpublished works including letters, diaries, manuscripts, photographs, memoranda, sketches, private journals, government records, and drafts intended for future publication. British copyright statutes protect such works.¹ Moreover, the leading international copyright instrument, namely, the Berne Convention for the Protection of Literary and Artistic Works, anticipates that unpublished works shall receive protection.² Beyond copyright, owing to excessive cumulation of rights in intellectual productions, concurrent bases for securing the interests that inhere in unpublished works have proliferated. In some common law jurisdictions, for example, vindication of authors’ interests is sometimes conceived in terms of official secrecy,³ breach of confidence⁴ and the right to privacy.⁵ However, although these regimes command widespread acceptance as orthodox means by which authors’ rights may be safeguarded, they yield several conceptual muddles relating to the intensity and scope of protection.⁶

In so far as copyright is concerned, for centuries, the House of Lords’ seminal judgment in Donaldson v Beckett (unauthorised printing of James Thomson’s The Seasons) was interpreted as mandating a differentiated approach to protection of published and unpublished works.⁷ Published works fell within the purview of statutory copyright and were the subject of stringent formalities and temporal restrictions.⁸ In contrast, unpublished works attracted automatic and perpetual common law copyright.⁹ ‘Publication’ was the principal dividing line between statutory and common law copyright and its employment in individual cases was perfused with numerous technicalities. Eventually, however, owing to various domestic and international exigencies, including the need to implement the Berlin Revision of the Berne Convention, for the greatest part, common law copyright has now been abrogated.¹⁰

While unpublished works are now, in general, assimilated to the treatment of published ones, notable differences in the strength of protection afforded to the two regimes subsist. Contemporary copyright law still confers stronger protection on unpublished works; a claim which is readily substantiated by the term of protection. In Britain, for instance, copyright in some ‘old’ unpublished works, including medieval manuscripts, will endure until 2039¹¹ – a situation which also prevails in America (certain sound recordings are copyrightable until 2067)¹² – and exceeds the standard term of protection.¹³ Quite apart from this, ‘first publication’ acts as a crucial determinant of the duration of copyright protection. Anonymous and pseudonymous works provide paradigm examples of that proposition – they are usually protected for a defined period from the year of first publication.¹⁴ Moreover, the country of origin of a work and, in turn, the term of copyright in works of foreign authorship can be identified by reference to ‘publication’.¹⁵

Frequently, however, the complexity of the term of copyright in unpublished works intensifies problems with ‘orphan works’; a concept which denotes failure to identify or trace authors.¹⁶ Authorship matters – copyright’s most significant features, including the term of protection, are anchored in it. In the absence of credible information concerning the identity or location of authors, licensed uses of copyright works might not materialise. Users are confronted by a nearly insuperable dilemma. Exploitation of orphan works might have to be abandoned; an attitude which can be abstracted from the experiences of some cultural heritage institutions. The Imperial War Museum could not situate soldiers’ experiences of the horrors of the First World War in their fullest historical context because the relevant material was orphaned.¹⁷ Alternatively, some users take the plunge and rely on orphan works without obtaining any licences. Authors Guild v Google, Inc provides a vivid illustration of the latter tendency.¹⁸ Google’s creation of a searchable database of books was confronted by a flurry of litigation. The issue of orphan works is internationally prominent – European and American solutions have emerged.¹⁹ However, these reforms in effect share the same basic inadequacy: they are predicated on diligent searches²⁰ – a wholly inefficient and sometimes costly procedure – the Victoria and Albert Museum’s efforts at that task engendered deployment of disproportionate resources in order to clear the rights in a few exhibits.²¹

Cultural heritage institutions including archives, museums and galleries are confronted with a further, more pressing, dilemma. Preservation of ‘orphan works’ is bound to generate potential claims for copyright infringement. Consider sound recordings that are stored in defunct or increasingly obsolete media, for the moment. Digitally remastering these works in order to improve their accessibility or conservation is tantamount to reproduction of the originals; a possibility which received detailed discussion in Capitol Records Inc v Naxos of America.²² Naxos was prevented from remastering old and out of copyright sound recordings by Yehudi Menuhin, Pablo Casals and others because of the operation of common law copyright in the USA. For its part, the British Library has often alluded to the intricacies of preserving and accessing its orphaned holdings;²³ an observation which has also found expression in a report by the Library of Congress.²⁴

These difficulties suggest the absence of any recognisable confluence between the justifications for the term of copyright protection and rights in some unpublished works.²⁵ Take the claim that post-mortem copyright safeguards the interests of authors’ heirs, for example.²⁶ That argument becomes extremely fragile if copyright in medieval manuscripts is considered – the possibility that an author created a work for the benefit of dozens of successive generations of heirs is shorn of any scintilla of legitimacy. Equally, the claim that authors engage in creativity in order to gain the pecuniary advantages of copyright protection is demonstrably fallacious. Authors of Elizabethan manuscripts, for instance, did not write with the hope that their rights would endure for centuries. A similar point attaches to the proposition that the copyright term encourages publishers to subsidise dissemination of risky works.²⁷ The length of that subsidy is an exercise in extravagance if old unpublished works are considered.

The unpublished status of a work assumes central importance in the context of the defences to copyright infringement.²⁸ The authorities exhibit numerous currents of which four are clearly relevant. In the first place, some copyright exceptions do not embrace unpublished works at all. The most convenient example of that feature relates to the exclusion of works which have not been made available to the public with their author’s consent from the ambit of some fair dealing defences.²⁹ Secondly, ‘fairness’, the key ingredient of fair use or fair dealing defences, rests heavily on ‘publication’³⁰ – a matter which often provokes serious controversies concerning copyright’s impact on other public interests.³¹ Harper & Row v Nation Enterprises³² (unauthorised first publication of excerpts from Gerald Ford’s memoirs) provides a compelling instance of that tension – freedom of expression was subordinated to an author’s economic interests. In addition, conservative interpretations of the ratio in that case appeared to suggest that unpublished works were excused from the fair use defence, an issue which prompted urgent legislative intervention.³³ In contrast, another copyright exception, namely the public interest defence can only logically be said to apply to unpublished works.³⁴ Because the act of publication reveals the work to the public, any residual demands for its enhanced circulation might be met by other copyright exceptions. Less controversially, ‘publication’ governs whether libraries or archives can copy a work.³⁵ The same is true for provisions that benefit the blind³⁶ or mandate compulsory performances of non-commercial broadcasts.³⁷ These matters inhabit a rapidly changing universe – initiatives that are geared towards strengthening copyright owners’ rights abound.³⁸ At the same time, given that copyright exists in the human rights era, conflicts between authors and users’ interests often materialise.³⁹ It is thus all the more necessary to insist that exceptions to copyright infringement ought to be effective; an exhortation whose realisation is capable of being fulfilled by interpreting various statutory provisions purposively.

‘Publication’ also provides a geographical criterion by which qualification for copyright protection can be achieved.⁴⁰ Domestically, copyright attaches to works which are first published in a specific country.⁴¹ At the international plane, copyright is fastened to a work whose first publication occurs simultaneously in a Member State of the Berne Convention and in another country which does not subscrib...