Reed Smith Client Alerts

Authors: Stephen Edwards

If you thought that all works by Lord Byron or William Shakespeare would definitely be out of copyright now, you wouldn’t necessarily be right.

The general rule of UK copyright law is that copyright in a literary work lasts from the date of its creation until 1 January in the year following 70 years from the death of its author. So on that construction, Byron and Shakespeare’s works are certainly in the public domain. But there is a little-known exception which would apply to any works by Byron or Shakespeare that have not been published, known as the “2039 rule”.

Before the introduction of the current copyright law in the 1988 Copyright, Designs and Patents Act (CDPA), copyright works were protected in two different ways. Works published during the author’s lifetime were protected for a fixed number of years after the author’s death. But works which were not published until after the author’s death were protected by copyright for a fixed number of years after the end of the year of publication. That meant that works which were never published were protected by copyright indefinitely. This applied to literary, dramatic and musical works, photographs and engravings.

As perpetual copyright was held contrary to public policy, the CDPA changed that provision so that works which were still unpublished on 1 August 1989 when it came into force would be protected for a further 50 years but no longer – hence the “2039 rule”.

Under the “2039 rule”, any literary, dramatic or musical work created by an unknown author or by an author who died before 1969 and which had not been published by 1 August 1989 will be protected by copyright until 31 December 2039 (unless, in the case of the unknown author, it is reasonable to assume that the author died more than 70 years previously). That means that you cannot publish or adapt a poem by Lord Byron which was not published before 1 August 1989 until 2040 without the consent of the current copyright owner. It goes without saying that identifying the copyright owner of these sorts of works will be costly, time-consuming and in many cases impossible.

The National Archives have estimated that there are 103.5 million unpublished archival items created before 1945 currently subject to the “2039 rule”, though of course only a fraction of these will be of interest to the general public.

In 2013 Parliament approved powers to amend the “2039 rule” and bring it into line with the standard copyright position to achieve fairness and legal clarity, to reduce the administrative burden on businesses and to bring UK law into line with EU law. The Intellectual Property Office has now published an extremely helpful and detailed consultation document which invites comments on its proposals to achieve that. It suggests that the general rule of copyright (i.e. protection lasting for 70 years from the death of the author) should apply to works currently subject to the “2039 rule” either immediately from the date of implementation of any new law or else that there will be a transitional period. In most cases, the practical implication of this will be that the first person to publish the work will have the benefit of 25 years of protection pursuant to the publication right. The publication right is a right given to the person who publishes a previously unpublished work after the copyright in that work has expired. It affords the same protections given to a copyright owner.

The “2039 rule” also applies to unpublished sound recordings made on or after 1 June 1957, unpublished photographs taken on or after 1 June 1957 and unpublished and unregistered films if they remain unpublished until 2039. If they are published between 1989 and 2039, different rules will apply. The Intellectual Property Office is not currently proposing any change to the rules regarding photographs and films and it has raised the question of whether sound recordings should be included in or excluded from these proposals. If they were to be included, unpublished (i.e. not released to the public in a recorded form) sound recordings made between 1957 and 1989 will be protected for 50 years from the date of creation. Any change to these rules would not affect the copyright position in any underlying musical or literary work included in the sound recording.

Responses on the consultation document are invited to the Intellectual Property Office by 12 December 2014. To see the document in full, click here:

Client Alert 2014-300