The weirdness of manuscript copyright law (UK version)
July 8, 2014 2:41 PM   Subscribe

In the case of unpublished historical manuscripts in copyright till 2039 in the UK, where the original author is long dead and there is no designated copyright holder, how does copyright work once you get down a generation or two and have multiple heirs of seemingly equal standing? (eg. several grandchildren or multiple great nieces and nephews) Must everyone be consulted and agree, or if a will never mentioned the manuscript but left everything to a given child or even a non-family member, do only their heirs count and not the other grandkids etc?

I'm running into problems with UK archives which insist on having a letter of permission from the copyright holder before any historical publication of extracts from an unpublished manuscript, but then they don't know who the copyright holder is or don't seem to hold up to date contacts. I can do the genealogy and work out who some of the living relatives are, but then how to tell which is the copyright holder or are they all copyright holders? Where there are wills they don't mention copyright and there is often no one obvious living heir but several relatives of the same degree. In one case the author willed nothing to family but all to friends and the copyright was not mentioned and the executor is long dead - do the family still have copyright?

These are manuscripts written by 'Joe Bloggs' type people from 100 years ago, not famous published authors whose works are worth a lot of money but they've been caught up in the copyright web. When the library or archive fails to turn up a copyright holder, how does one proceed? I'm eventually running all this past a lawyer but I'm trying to get my own head round it at the moment.

How does manuscript copyright work when nobody cared about it enough to specify what should happen to it and all the immediate heirs are dead?

Thanks to anyone who can shed light on this or point me to some help on it!
posted by Flitcraft to Law & Government (3 answers total) 2 users marked this as a favorite
It belongs to the estate, and what living people get to make decisions would be entirely dependant on the terms of the will. If there was no will, it would depend on the terms established by the court in probate. (IANAL)

Consult a solicitor.
posted by Chocolate Pickle at 2:45 PM on July 8, 2014

I don't know much about UK law on this, but when you're talking/searching this is often called the "orphan works" problem.
posted by mercredi at 3:25 PM on July 8, 2014

First, while I've done copyright clearance as a volunteer for a non-profit, let me be clear that I'm not a lawyer and you need the advice of a lawyer.

Upon the death of a copyright owner, ownership of the copyright to a work may be bequeathed by will, pass as personal property by the applicable laws of intestate succession (which differ depending on legal jurisdiction), or transfer by applicable copyright law. Even if there is a will, it is very common for wills to fail to take into account copyright. It is often the case that all copyrights held by an estate are transferred by a default "all my other assets" clause in the will.

In general, in modern copyright law the transfer of ownership of a physical item, be it the original work or a copy, does not involve the transfer of ownership of the copyright, unless this is explicitly stated as part of the transfer. As an example, suppose academic A leaves all of her assets to her brother B, except for the contents of her office, which she leaves to her colleague C. If C later decides to publish a work that quotes extensively from A's research notes obtained from A's office, he may need permission of B (or B's heirs) as his ownership of the physical copies of A's notes is not the same thing as ownership of the copyright to the notes. However, in some jurisdictions transfer through inheritance, where the copyright in inherited works is often not explicitly stated separate from the work, may also transfer the copyright. For certain types of work, this type of copyright transfer used to be more common, and some still exist. As an example, in Italy, a transfer of a photographic negative implies transfer of the copyright absent an explicit agreement otherwise.

It is also very common under the terms of a will or laws of intestate succession for two or more heirs to end up as joint owners of the copyright to a work. In the case where there are two or more joint owners to the copyright of a work, from whom you must obtain permission differs by jurisdiction. For example, in the U.S. each co-owner has an independent right to use or license the use of the copyright in the work without the need to obtain the consent of the other co-owners (although they have a duty of accounting to the other co-owners for any profits). However, as I mentioned before, the law on this point differs in foreign jurisdictions, and, in many countries, all co-owners must join in licensing to a third party. Of particular importance to you, in the United Kingdom, one co-owner may not even personally exploit the copyright without the consent of the other co-owners. However, even if you determine that legally you only need the permission of one heir, it is often prudent to obtain permission from all heirs, as often the goal is to avoid getting sued, not just be likely to avoid a loss if sued.

So the general strategy is to assemble a list of joint copyright owners. Start with the original author (or authors) of the work. For each owner, if they are deceased, examine their will (or if they died without a will, the applicable laws of intestate succession) and the applicable copyright laws to determine the individual (or individuals) who inherited the copyright and replace the owner with the appropriate heirs. Repeat the process until everyone in the list is alive. Once you have this list, obtain permission from at least one (in the U.S. for a U.S. copyright) or from all (in the U.K.).
posted by RichardP at 6:05 PM on July 8, 2014 [2 favorites]

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