Convened by CILIP: the Chartered Institute of Library and Information Professionals
c/o CILIP 7 Ridgmount Street London WC1E 7AE
Copyright term for published and unpublished works
Short briefing prepared by the Libraries and Archives Copyright Alliance
(LACA)
October 2014
The term of copyright protection for published works is life of the author plus 70
years. For certain unpublished works it is different and this poses particular problems
for libraries, archives and museums. No other country in Europe has such
provisions for unpublished works.
Before the Copyright, Designs and Patents Act (CDPA) 1988 came into force on 1st
August 1989 unpublished works enjoyed perpetual copyright. The CDPA redefined
the duration of copyright for those works, giving them a fixed term to the end of the
year 2039 (50 years after the CDPA came into force). It applies to works where the
author died before 1969 and the works were unpublished before 1 August 1989,
irrespective of the age of the work.
Whilst a fixed term is better than perpetual copyright is still means that very old
unpublished works, including a high proportion of the contents of many archives and
libraries are, absurdly, still in copyright and will remain so for the next 25 years. For
example the following unpublished works are still in copyright even though the
authors died more than 70 years ago:
Archival Material at the Tate

Walter Sickert
d.1942

Henry Scott Tuke
d. 1929

Gaudier-Brzeska
d. 1915

Thomas Cooper Gotch d. 1931
Archival material at the Natural History Museum

Letters of Conan-Doyle
Chair Naomi Korn
d. 1930
Tel +44 (0)20 7255 0500 (CILIP)
Email policy@cilip.org.uk (CILIP)
Web site www.cilip.org.uk/laca
Representing ARA: The Archives & Records Association, ARLIS/UK & Ireland: The Art Libraries Society of the UK and Ireland, BIALL: British
and Irish Association of Law Librarians, The British Library, CILIP: the Chartered Institute of Library and Information Professionals, IAML/UK
& Ireland: The International Association of Music Libraries, Archives and Documentation Centres, JISC: Joint Information Services
Committee, LIS-COPYSEEK online community, Museum Libraries, The National Library of Scotland, The National Library of Wales, Share
the Vision, Society of Chief Librarians in England and Wales, and SCONUL: Society of College, National and University Libraries,
Wellcome Trust.
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Enterprise and Regulatory Reform Act 2013
Provisions in the Enterprise and Regulatory Reform Act (ERRA) 20131 gave the
government powers to amend the term of copyright for unpublished text based
works, engravings and anonymous artistic works (except photographs) to life of the
author plus 70 years. This would bring the UK’s copyright terms more closely into
line with the harmonised regime across Europe, as intended by the Term Directive2.
However, implementation has been delayed. There is now a real danger that the
issue of 2039 will be lost in parliamentary process before the General Election on
7th May 2015.
Orphan works and 2039
‘Orphan works’ are works in which copyright still subsists, but where the rightholder,
whether it be the creator of the work or successor in title, cannot be located. “In From
the Cold”3 noted that up to 50% of archival collections are likely to be Orphan Works,
mainly because the duration of copyright in unpublished works such as letters,
manuscripts, diaries, etc. is to the end of 2039 regardless of age.
The government is trying to address the issue of Orphan Works through an Orphan
Works licensing scheme4 and measures to implement the European Directive on
Orphan Works5. The Orphan Works Licensing Scheme will be run by the Intellectual
Property Office (IPO) and is due to be introduced on 29th October 2014.
In practical terms, because the duration of copyright in unpublished works was not
dealt with at the same time that the Orphan Works solutions have been
implemented, or at least implemented by March/April 2015, libraries, archives and
museums will be expected to conduct due diligence searches (under the terms of the
Exception) and also to pay an administration/licence fee (under the terms of the
Orphan Works Licensing Scheme). This is a pointless waste of resources, for many
of these works are within the scope of the reduction of term measures from 2039 in
ERRA 2013. In addition, IPO will be wasting time licensing works that, but for the
delay over 2039, are strictly not Orphan any longer. The ‘Orphaned’ unpublished
works will remain in copyright in the UK and therefore Orphan, but be out of
copyright in the rest of Europe. This will lead to the works that should be dealt with
by the 2039 removal being wrongly registered as Orphans on the Office for
Harmonisation in the Internal Market (OHIM) database, causing confusion across
Europe and the world in relation to online projects such as Europeana 6, and more
wasted public resources subsequently to put it right.
It could be argued that no one suffers real detriment if the copyright term for
unpublished works is brought in line with the term for published works, and with
provisions in the rest of the EU, since the life plus 70 years term proposed for
1
http://www.legislation.gov.uk/ukpga/2013/24/contents/enacted (see Section 76)
http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006L0116
3
http://www.jisc.ac.uk/publications/reports/2009/infromthecold.aspx
4
http://www.legislation.gov.uk/ukdsi/2014/9780111117644/contents
5
http://www.legislation.gov.uk/ukdsi/2014/9780111117682
6
http://www.europeana.eu/
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unpublished works ensures that even a creator’s grandchildren continue to control
the uses of his or her unpublished work in the same way as with published works.
Free Our History campaign
The Chartered Institute of Library & Information Professionals and the Library and
Archives Copyright Alliance are campaigning on this issue.
We want the UK Government to reduce the term of copyright protection in
unpublished texts to the author’s lifetime plus 70 years.
Find out about the Free Our History campaign and how you can get involved:
www.cilip.org.uk/freeourhistory
We’re asking libraries, museums, archives and cultural institutions to display a blank
case in which they would like to show a document, but can’t due to copyright laws.
You can sign a petition and support the campaign on social media using #catch2039
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