Category Archives: Duration

Copyright in the Transition Period and afterwards.

Now the European Union (Withdrawal Agreement) Act 2020 is on the statute book, the UKIPO has published a useful guide on the transition period between 31 January and 31 December 2020. ‘During this time, EU law will continue to operate as it does now in the UK … and will continue as it is until 31 December 2020.  The guidance on Copyright states that ‘[c]ontinued reciprocal protection for copyright works between the UK and the EU is assured by the international treaties on copyright. This is independent of our relationship with the EU so is not addressed in the Withdrawal Agreement. 

After the transition period, the changes to copyright law from 1st January 2021 are contained in the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019(Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019).  This removes all references to EU & EEA in the Copyright Designs and Patents Act 1988 and replaces them with “UK” and the following will apply:

Qualification for Copyright
Works currently eligible for copyright on the basis of nationality of the UK/EEA or any country party to international copyright treaties will continue to be eligible after the end of the transition period.  
Works first published or transmitted in the UK, EEA or any country that is party to the international copyright treaties will continue to be eligible for copyright protection in the UK.

Copyright Protection
UK copyright works (literary, dramatic, music and artistic) will still be protected in the EU because of the UK’s participation in the international treaties on copyright, and in parallel,  EU copyright works will continue to be protected in the UK.  This applies to works made before and after the end of the transition period.

Copyright Duration
Copyright duration of 70 years after the death of the author in the UK will not change after the end of the transition period. Currently, EEA works are given the same copyright duration in the UK as UK works. For works from outside the EEA, copyright lasts for the term granted in the country-of-origin or the term granted to UK works, whichever is less.

Orphan Works
The exception for cultural heritage institutions e.g. libraries, museums, and archives to digitise and  make orphan works available online across all
EEA member states without the permission of the right holder will no longer apply to UK-based institutions and will be repealed from UK law after the end of the transition period. (Schedule ZA1 CDPA 1988 is omitted in its entirety).  Consequently, UK institutions may face claims of copyright infringement if they make orphan works available online in the UK or EEA, including works they had placed online before the end of the transition period.  (The guidance advises on what steps to be taken).

Artist’s Resale Right
In accordance with the Berne Convention, nationals of the UK and other countries that provide reciprocal treatment, including EU member states, will continue to receive resale rights in the UK after the end of the transition period.

Collective Management Organisations
In the UK, existing obligations on UK CMOs (e.g. DACS, PICSEL, ACS, etc) will be maintained after the end of the transition period.  EEA CMOs will not be required by the CRM Directive to represent UK right holders or to represent the catalogues of UK CMOs.  However, UK right holders and CMOs will still be able to request representation, but EEA CMOs may be free to refuse those requests depending on the law in individual member states. 





Duration of Copyright & the Publication Right

1st January 2020 marks the end of copyright term for artistic works i.e. photographs, of authors who passed away in 1949 i.e. 70 years from the end of the calendar year in which the author dies. Conversely under current legislation, 01 January 2090, will mark the end of copyright for authors who have passed away in 2019.  At which point, the author’s works will be deemed to have passed into the ‘public domain’.

What is the ‘public domain’.  It is not a physical terrain or a cloud store of aggregated works.  It can be defined as: 1) works out of copyright for which no permission is required to use or commercially exploit; 2) works which do not qualify for protection e.g. ideas, facts, folklore, etc; and 3) works permitted for open use under a creative commons or general public licence. The works are free for the public to use and exploit without requiring permission to do so.

However, one lesser known right equivalent to copyright, a ‘publication right’, resides in unpublished works out of copyright.  The publication right is automatically vested in any person or entity who after the expiry of the copyright term, publishes a previously unpublished ‘public domain’ work for the first time i.e. artistic works in which the copyright has lapsed.

The publication right lasts for 25 years from the end of the year in which the work was first published and cannot be extended.  The qualifying criteria is the work must be first published in the EU/EEA and the publisher must be a national/entity of an EU/EEA country.  No account is taken of any unauthorised act or publication before the work enters the public domain.

In the case of an artistic work, ‘publication’ means the issue of copies to the public and also making it available to the public by means of an electronic retrieval system. Hence the act of making available online or communicating to the public a previously unpublished artistic work in which the copyright has lapsed will grant the publisher a ‘publication right’ for a further 25 years from the date of publication.

Directive 2006/116/EC – Article 4
Copyright and the Value of the Public Domain’ – IPO Jan 2015.