Duration of copyright in unpublished works
The duration of copyright in unpublished materials is complex and dependent on a number of factors. Click on the types of works below for guidance:
Literary, dramatic or musical works
Generally, if an unpublished literary, dramatic or musical work was created before 1 August 1989 and the author is known and died before 1 January 1969, copyright expires on 31 December 2039. This means that some very old manuscripts are, surprisingly, still in copyright.
The Copyright, Designs and Patents Act 1988 ended perpetual copyright in unpublished materials. As a result the copyright in a literary, dramatic or musical work which was created before 1 August 1989 but the known author died after 1 January 1969, expires 70 years from the end of the year in which the author died.
Where the author of a literary, dramatic or musical work is unknown and it was created after 1 January 1969, copyright expires 70 years from the end of the year in which the work was created, or 70 years after the work was made available to the public.
It is important to remember that a document does not need literary merit to be classed as a literary work. A letter, diary entry, even an email, all count as literary works and are subject to copyright legislation.
Artistic works
The duration of copyright in unpublished artistic works varies according to dates of creation. Artistic works exclude photographs and engravings but include drawings, maps etc.
If the artistic work was created before 1 August 1989, copyright expires on 31 December 2039. If the artistic work was created after 1 August 1989 copyright expires 70 years from the end of the year in which it was created.
Photographs
The duration of copyright in unpublished photographs is complex.
Where the creator is known and the photograph was taken before 1 June 1957, copyright expires 70 years from the end of the year in which the author died.
If the photograph was taken between 1 June 1957 and 1 August 1989, and the known author died before 1 January 1969, copyright expires on 31 December 2039.
The copyright in photographs taken between 1 June 1957 and 1 August 1989 where the author died after 1 January 1969 expires 70 years from the end of the year in which the author died.
Copyright also expires 70 years after the author died for photographs taken after 1 August 1989.
Sound recordings
The copyright in unpublished sound recordings, made between 1 June 1957 and 31 July 1989, whether the author is known or unknown, expires on 31 December 2039.
The copyright in any unpublished sound recordings made before 1 June 1957 or after 1 August 1989, whether the author is known or unknown, expires 50 years from the end of the year in which it was made.
The National Archives also provides guidance on the duration of copyright in literary, dramatic, musical and artistic works with a helpful flowchart on the Duration of non-Crown copyright
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Exceptions to copyright infringement
Although copyright legislation protects the copyright owners from unfair copying, there are circumstances in which copying of unpublished papers can be legitimately undertaken. These are known as exceptions.
Any Literary, dramatic or musical work which had not been published when it was deposited in an archive repository, may be copied in its entirety if the following conditions are met:
- The copyright owner has not prohibited copying
- The researcher is not supplied with more than one copy of the same material
- A statutory copyright declaration form is submitted to the archive/library supplying the copy
- The researcher is receiving the copy purely for research or private study purposes and not for commercial profit – ‘ fair dealing ’.
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Copyright and ownership rights
Physical ownership of an unpublished item does not correlate with copyright ownership – copyright is an intellectual property right which is quite distinct from an ownership right and usually (but not always) descends to the heirs of the author.
In many cases, permission to publish a previously unpublished item, needs to be obtained from both the copyright holder and the owner. Even when copyright has expired, a researcher still needs to consider ownership rights.
Copyright holders and ownership rights holders may often require acknowledgement in publications using their resources. It is important to identify and use the correct and appropriate form of acknowledgement required.
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Quotations
Quotations are allowed from unpublished papers in the same way as published papers under the terms of ‘fair dealing'. This is provided that the unpublished material "has been made available to the public" (S.30, CPDA), for example, in a public archive.
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Orphan works
Many researchers using primary sources will come across orphan works. These are items which are still in copyright but it is not possible to identify the copyright owner. These may be anonymous or pseudonymous works for which the author is simply not known, or may be very old letters or papers which were written a long time ago.
The Copyright, Designs and Patents Act 1988 provides some support to researchers wanting to publish very old manuscripts which are still in copyright by allowing certain assumptions, including if the work is more than 100 years old, or if the writer died more than 50 years ago. In many cases, the decision to publish such items must be subject to a risk assessment.
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