Copyright

Crazy U.K. Copyright Laws Suppress WWI Soldiers' Letters, Other Historical Documents

How the U.S. and Britain can learn from each other to make unpublished and orphaned works available to the public.

|

WWI diaries
Public Domain

This year is the centenary of the beginning of World War I. Visitors to the Imperial War Museum, the National Library of Scotland, the University of Leeds, and other sites have the chance to view special exhibitions associated with the historical event.

In each of the displays, several cases are empty. The reason? Museums and libraries wanted to showcase letters from soldiers, but these letters were never published. As a result, according to U.K. copyright law, they will not be in the public domain until 2039.

The empty display cases are part of a Free Our History campaign, organized by the Chartered Institute of Library and Information Professionals [cilip], which is attempting to alter laws regarding unpublished works in the U.K. According to cilip, more than half the archival documents in the U.K. are copyrighted by persons who can't be identified, rendering them "orphan" works. The Imperial War Museum has 1.75 million such documents.

It may seem ridiculous that 100-year-old letters cannot be displayed by public institutions in Britain for another quarter century, but the problem goes beyond that. Currently, any unpublished work, no matter how old, is protected until 2039. Naomi Korn, Chair of the Libraries and Archives Copyright Alliance, said that even medieval manuscripts held by the British Library may be under copyright. Institutions may not be able to display documents related to the 200th anniversary of the Battle of Waterloo next year. Unpublished letters by Arthur Conan Doyle are embargoed, even though his published works are now in the public domain in the U.K. According to Klein, because these works are "still under copyright protection they cannot be displayed without the museum, library or archive seeking permission from the rights holder or spending time and money trying to trace rights holders and taking out an unnecessary Orphan Works License. In this way the delay to much needed government reforms of copyright law limits and distorts the telling and understanding of our nation's history."

So how could U.K. law be changed to allow museums to display these works? One solution—perhaps surprising—would be to bring the law more in line with current U.S. copyright terms.

Anyone familiar with copyright law in the U.S. knows that our American regime is byzantine, restrictive, and generally awful. But in this one instance, it functions better than European and British copyright, according to David R. Hansen, professor and librarian at the University of North Carolina School of Law.

Hansen told me that the "first sale" doctrine allows libraries, museums, and non-profit institutions to display unpublished orphan works with minimum legal risk. "After the first sale," Hansen explained, in the U.S. "anyone who owns that particular copy of it can display it afterwards."

Beyond that, American copyright law—unlike British law—includes strong and relatively flexible fair use provisions, which makes it easier for non-profits to not only display work, but also to digitize it.

There are difficulties in the U.S. in dealing with unpublished and orphan works, but those difficulties are somewhat different than those faced by U.K. libraries and museums. To begin with, the definition of "unpublished" is clearer in Britain than it is in the U.S., which means that in America it can be harder to determine whether that small-circulation book was published or not, and then harder still to figure out if it's out of copyright or in public domain.

Beyond that, Hansen said, U.S. artists working in a for-profit setting don't have as much fair use protection as non-profits and scholarly institutions. Non-profits are in most cases protected from damages. If they digitize something and the creator turns up, the worst that would happen in most cases is that they would have to take the piece offline. A for-profit documentary filmmaker who incorporates an old film clip by an unknown creator, on the other hand, can face serious statutory penalties ($150,000 fines in some cases)—and of course the documentary film could be ruined if the original creator demands the removal of the clip. In this respect the U.S. could probably benefit from a system of licensing, perhaps similar to the one involving cover songs, where the creator cannot prevent use, but is owed a flat fee, which could be claimed if the creator of an orphan work suddenly appeared. As it happens, a licensing scheme along these lines has just recently been established in the U.K.—though it's time-consuming and expensive, and doesn't provide much relief for research institutions with thousands or millions of orphan documents in their collections.

The other major problem in the U.S. is simply that the law is so complicated, and new uses so unexplored, that institutions will sometimes shy away from exercising rights they actually have. Scholarly publishers in comics studies, for example, often won't reprint panels without permission from DC or Marvel, even though there is a strong fair use argument for doing so. Similarly, libraries and archives may be leery of presenting or reproducing unpublished works because there hasn't been a lawsuit dealing with the issue yet. "Libraries and archives…have to get comfortable with taking some risks and asserting rights that they have to start to move forward with digitizing these things," Hansen said.

Martin Paul Eve, author of the forthcoming Open Access and the Humanities, characterized re-use of orphan and unpublished works as "a victimless crime"—no one is hurt when you display or digitize a centuries-old letter by a forgotten author. Suppressing such a letter, however, restricts public understanding and scholarly research. The U.K. and the U.S. can both do better in making these works available—in part, perhaps, by learning from each other.

NEXT: Guns and Pot: Which States Are Friendly to Both?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So, who is going to sue them?

    1. The estate of the deceased (aka, someone who descended from them and smells a paycheck)

  2. I think I’d be far more surprised if England did just about anything better than the US.

    1. The Sun’s page 3 girls, but who knows they’ll continue the tradition after the Irish version acquiesced.

      1. See, that surprises me.

      2. Although Page3.com now has a registration requirement…information wants to be free!

    2. Cheese.

      And I guess they shoot fewer dogs maybe?

      1. And I guess they shoot fewer dogs maybe?

        Without googling it up, I’m going to bet dog deaths to cops are the same per capita.

        1. Most cops there don’t carry guns and it’s much more of a workout to beat a dog to death with a billy club.

        2. Trust me, a policemen killing a dog is VASTLY more likely to cause a riot in the UK than killing a person. It is rare to say the least.

      2. Cheese, beer and breakfast are things the English do well.

        1. Meh not a big English muffin fan, but I would agree with everything else.

          1. I’ve had English breakfasts (in England) and ‘English muffins’ were nowhere to be found. Maybe it was just the Hotel.

            1. I now only will recognize English Muffins if they are relabeled “freedom muffins.”

            2. In my experience they usually just have regular toast.

          2. English muffins have nothing to do with English breakfasts. English breakfast is the big fry-up with eggs, bacon, beans, tomato, sausage and various regional variations (often including blood pudding, which isn’t my favorite).

            1. Blood pudding is the food of the gods!

              1. We pray to different deities.

  3. According to cilip, more than half the archival documents in the U.K. are copyrighted by persons who can’t be identified, rendering them “orphan” works.

    The above is nonsense IF I.P. is true property.

    What exactly are persons who can’t be identified? By whom? Why would that matter? Would you lose your property if you can’t be “identified”? Is that the litmus test for holding property – that you’re easy to “identify”?

    If you’re going to hold the silly notion that IP is “property”, then you better be consistent in your argumentation.

    Museums and libraries wanted to showcase letters from soldiers, but these letters were never published.

    So who owns these letters, the museums of the people that copyrighted them?

    This is not some queer occurrence in the history of copyright and IP. This is EXACTLY what you IPers were warned about. When the concept of Property becomes blurred by the State, the result is NO property rights.

    Those letters belong to the Museum and thus they have the right to make them public, according to Natural Law. According to IP, however, they belong to whoever “copyrighted” them. The onus is on YOU, IPers, to say why one property right is valid whereas the other is NOT. What a conundrum.

    1. It should read: “So who owns these letters, the museums OR the people that copyrighted them?”

    2. IP is an oxymoron. Property has value because it is scarce and its control can be transferred. Ideas are scarce as long as they are kept secret, but the only way to control an idea after transfer is for the buyer to kill or at least disable the seller.

  4. Noah Berlatsky on the U.K.’s Crazy Copyright Scheme

    The sentence implies that there are non-crazy Copyright schemes. Which there aren’t.

    1. That’s pretty much my current stance on copyright and IP laws, but it still sways ever so often.

  5. OT =

    President Obama is having a fun sleepover party with Chinese President Xi Jinping

  6. Whatever you think about IP, this is just stupid. Does every letter automatically get copyright protection? That just seems odd.

    I’m fairly ambivalent about IP. Seems like there might be some value to it. But I think 14 years (or the life of the author) of protection for the original author would be plenty.

    1. Technically, every composition, from the artistic to the banal gets copyright protection. That limerick you threw together in middle school is covered (though probably not documented or remembered enough to be enforced)

      Anything past the lifetime of the creator is waste. Short copyrights actually encourage more creation because they can prevent the immediate theft and exploitation by someone with a bigger printing press, but will still go away soon enough that the creator can’t just rest on their laurels and will have to make new content to keep getting paid.

      1. I thought that the author at least had to claim copyright. I knew it didn’t have to be officially registered or anything.

        So if I write a note, and drop it on the ground somewhere and someone picks it up and 50 years from now publishes it, I can sue them. Weird.

  7. Wait a minute…the work is deemed copyrighted, so the ORIGINAL can’t be displayed??! You saying you can legally own & possess it, but can’t exhibit it? I can understand that for a work that’s recorded in some other medium and therefore needs to be “performed” in some way (such as playing a record or video or sheet music), but the original work in its original form?! Can you show it privately to someone who might be interested in buying it?

  8. Six months ago I lost my job and after that I was fortunate enough to stumble upon a great website which literally saved me. I started working for them online and in a short time after I’ve started averaging 15k a month… The best thing was that cause I am not that computer savvy all I needed was some basic typing skills and internet access to start…
    This is where to start=== ?w?w?w.M?o?n?e?y?k?i?n.c?o?m?

    1. carltonb35|11.10.14 @ 4:13PM|#
      “Six months ago I lost my job”

      Yeah, well, you should have worked harder.

  9. What I find crazy is that somehow the works of Robert Howard, a Texan who died childless in 1937, are somehow owned by a company in Sweden.

    Look at the crap Dracula has spawned thanks to it being in the public domain. Imagine what Conan could do. It wouldn’t be as much, but I’m sure it would generate a sizable amount of commerce.

Please to post comments

Comments are closed.